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HQ 957189

January 11, 1995

CLA-2 CO:R:C:M 957189 KCC


TARIFF NO.: 8541.90.00

Dr. Bo Denysyk
Global USA, Inc.
Suite 650
2121 K Street, N.W.
Washington, D.C. 20037

RE: Anti-reflection coated silicon wafer; 3818.00.00; EN 38.18; doped silicon wafer; solar panel; Article 509; NAFTA; T.D. 94-1; 19 CFR 181.92(b)(5) and (6)

Dear Dr. Denysyk:

This is in regards to your letter dated September 16, 1994, to Customs in New York, on behalf of Kyocera International, Inc., concerning the country or origin, applicability of the North American Free Trade Agreement (NAFTA) and tariff classification of solar panels under the Harmonized Tariff Schedule of the United States (HTSUS). A flow diagram of the production process was submitted for our examination.


Kyocera presently manufactures its solar panels in Japan. However, it is considering establishing a solar panel manufacturing plant in the U.S. For the proposed manufacturing operation, Kyocera will import Japanese manufactured multi-crystalline silicon wafers. The manufacturing operation in Japan consists of:

1. silicon wafer fabrication;
2. surface treatment;
3. pn junction formation;
4. back n type layer etching;
5. back surface field formation; and
6. anti-reflection coating.

After importation into the U.S., the anti-reflection coated silicon wafers will be further manufactured into a complete solar panel. The manufacturing operations to be performed in the U.S. entail:

1. patterning;
2. metalization;
3. solder coating;
4. cell inspection;
5. lead wiring;
6. string formation;
7. lamination;
8. curing;
9. framing;
10. joint box fixing; and
11. inspection.

The complete solar panels will then be exported to Mexico and/or Canada.


I. What is the tariff classification of the silicon wafer with anti-reflection coating under the HTSUS?

II. What is the tariff classification of the completed solar panels under the HTSUS?

III. Are the completed solar panels eligible for preferential tariff treatment under the NAFTA when exported from the U.S.?

IV. What are the country of origin and the proper marking requirements applicable to the solar panels when exported from the U.S.?


Tariff Classification

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, states, in part, that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes...."

You contend that the imported silicon wafer with anti-reflection coating is classified under subheading 3818.00.00, HTSUS, as a doped silicon wafer, or under subheading 8541.90.00, HTSUS, as a part of a semiconductor device. The competing subheadings are as follows:

3818.00.00 Chemical elements doped for used in electronics, in the form of discs, wafers or similar forms; chemical compounds doped for use in electronics....

8541.90.00 Diodes, transistors and similar semiconductor devices; photosensitive semiconductor devices, including photovoltaic cells whether or not assembled in modules or made up into panels; light-emitting diodes; mounted piezoelectric crystals; parts thereof...Parts.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System ENs may be utilized. The ENs, although not dispositive, provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the HTSUS. See, T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). EN 38.18 (pg. 539) states, in part, that heading 3818, HTSUS, covers:

(1) The chemical elements of Chapter 28 (for example, silicon and selenium) doped with, for example, boron or phosphorus, generally in a proportion of the order of one part per million, provided they are in the form of discs, wafers or similar forms. When in forms worked as drawn, or in the form of cylinders or rods, they are classified in Chapter 28....

Those more extensively worked (e.g., by selective diffusion) fall in heading 85.41 as semiconductor devices (emphasis in original).

We are of the opinion that the imported silicon wafer with anti-reflection coating is not classifiable under subheading 3818.00.00, HTSUS. At importation the silicon wafer is not merely a doped silicon wafer, but is more extensively worked by the surface treatment, pn junction formation, back n type layer etching, back surface field formation and anti-reflection coating operations performed in Japan. Based on the manufacturing operation performed in Japan, we are of the opinion that the silicon wafer is classified under subheading 8541.90.00, HTSUS, as part of a semiconductor device.

The U.S. Customs Service is not authorized to issue an advance ruling to you with regards to the tariff classification of the completed solar panels under the HTSUS. Pursuant to Part 177, Customs Regulations (19 CFR Part 177), Customs may issue an advance tariff classification ruling letter for prospective transactions of articles entering the U.S. As you have requested a tariff classification ruling for articles to be manufactured in the U.S. and then exported to Canada or Mexico, we cannot properly issue a prospective ruling pursuant to 19 CFR Part 177.


Additionally, we cannot issue a NAFTA advance ruling letter pursuant to 181.92 (b)(5) and (6), Customs Regulations (19 CFR 181.92(b)(5) and (6)), which sets forth who may request a NAFTA advanced ruling and which issues may be covered by the NAFTA ruling. As presented, your request does not fall within the subject matter of 19 CFR 181.92(b)(5) and (6). As you will be exporting completed solar panels to Mexico and/or Canada, your should direct your NAFTA inquiry to either government. You may contact the Mexican NAFTA Help Desk at (525) 211-3545, or the Canadian NAFTA Help Desk at (613) 941-0965 for information concerning Mexico's and Canada's procedures for Advance NAFTA Rulings.


The silicon wafer is classified under subheading 8541.90.00, HTSUS, as part of a semiconductor device. Articles classified under this tariff provision enter the U.S. duty free.


John Durant, Director
Commercial Rulings Division

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