August 27, 2009 CBP Bulletin Notice on Classification of Pellicles

Proposed revocation of rulings; proposed revocation of treatment. CBP is proposing to revoke two rulings on the classification of pellicles. Additionally, CBP proposes that this notice covers any rulings on this merchandise that may exist but have not been specifically identified. CBP is also proposing to revoke any treatment it has previously accorded to substantially identical transactions.

CBP states that any party who has received an interpretive ruling or decision on the merchandise that is subject to the proposed revocations, or any party involved with a substantially identical transaction, should advise CBP by September 28, 2009, the date that written comments on the proposed ruling are due. Furthermore, CBP states that an importer's failure to advise CBP of such rulings, decisions, or substantially identical transactions may raise issues of reasonable care on the part of the importer or its agent for importations subsequent to the effective date of the final decision in this notice.

Pellicles. The merchandise at issue is described as pellicles which consist of a membrane or ultra-thin piece of plastic film mounted on a frame of aluminum alloy or plastic that is used with aphotomask (a quartz or glass plate containing precision images of integrated circuits) in a photolithography process which transfers reduced-sized patterns from the photomask to sensitized semiconductor wafers and materials. The pellicle covers the photomask to provide a contaminant-free environment.

CBP is proposing to issue HQ H055635 and HQ H055636 in order to revoke NY I87349 and NY G88540, and reclassify the pellicles under HTS 8486.90 as "parts of machines and apparatus of a kind used solely for the manufacture of integrated circuits," rather than under HTS 9002.90 as "optical elements."

CBP proposes this change as a correction. CBP has received information indicating that the pellicles at issue do not reflect light; they merely transmit the light that shines through them. Based on the Explanatory Notes (ENs), with support from prior rulings (see bulletin for ruling numbers), CBP now proposes that the pellicles at issue are not optical elements.

EN 90.01 (incorporated by reference into EN 90.02) states that "Optical elements are manufactured in such a way that they produce a required optical effect. An optical element does more than merely allow light (visible, ultraviolet or infrared) to pass through it, rather the passage of light must be altered in some way, for example, by being reflected, attenuated, filtered, diffracted, collimated, etc."

The pellicles at issue do not alter (e.g., reflect, attenuate, filter, diffract or collimate) the light that passes through them. To the contrary, they are intentionally designed to reduce their reflectivity and to optimize light transmission. As such, CBP concludes that they are not "optical elements" of heading 9002. Furthermore, it is undisputed that the subject pellicles are used solely with lithography equipment which transfers the circuit designs to the photo-resist coated surface of a semiconductor wafer.

Therefore, CBP now proposes that by application of GRI 1 and Note 2(b) to Section XVI, the subject pellicles are classified in subheading 8486.90.00, which provides for: "Machines and apparatus of a kind used solely or principally for the manufacture of semiconductor boules or wafers, semiconductor devices, electronic integrated circuits or flat panel displays; parts and accessories: Parts and accessories."

Proposed: 8486.90.00, duty-free; Current: 9002.90.9500, 3%

August 27, 2009 CBP Bulletin (Vol. 43, No. 35) available athttp://www.cbp.gov/xp/cgov/trade/legal/bulletins_decisions/bulletins_2009/