CLA-2 RR:CR:GC 959109 RFA
Port Director
U.S. Customs Service
10 Causeway Street
Room 603
Boston, MA 02222-1059
RE: Protest 0401-1996-100112; Compound Optical Microscopes Used for Semiconductor Inspection; Measuring or Checking Instruments; Headings 9011 and 9031; EN 90.11; Carl Zeiss, Inc. v. United States, CIT Slip Op. 98-86; HQs 954662 and 956638
Dear Port Director:
The following is our decision regarding Protest 0401-1996-100112, which concerns the classification of Leica compound optical microscopes used for semiconductor inspection under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The subject merchandise are the Leica Ergoplan [now sold as “INM200"] and Polycon [now sold as “INM20-C”] binocular microscopes used for inspecting photomasks and semiconductor wafers. They were imported without measurement inspection stations and without cameras. According to information provided by counsel, the subject merchandise was entered in the following different configurations: a standard configuration containing the microscope, stage, and electronics control box; microscopes by themselves; and microscopes which were made for original equipment manufacturers (OEM).
The Ergoplan and the Polycon are compound optical microscopes designed for examining very small objects such as circuitry photomasks and semiconductor wafers. The microscopes do not measure a quantity, nor do they check against a standard. Both microscopes have a horizontal distance between the optical axis and the C-shape axis and C-shape microscope stand of 8 inches or more. The C-shape design accommodates the dimensions of the semiconductor stage.
The Ergoplan is equipped with a camera port for video projection and TV mounting if desired by the end-user. The Polycon is specially designed to use the confocal imaging method, which is designed for maximum speed and accuracy in an industrial setting. After importation, the Polycon can function “as is” or can be incorporated into larger inspection or measurement systems.
Some of the entries of microscopes were equipped with large scanning stages for semiconductor wafers and masks. The stages allow for the complete rotation of multiple wafers or photomasks on “wafer rotators” or “holders” which fit onto the stage. Rotation is accomplished either by means of the extended rod protruding from the wafer rotator or is accomplished automatically by computerized controls. The stage contains an opening which can be closed by means of a lid. The lid is used to close the opening when a wafer is being inspected to create an opaque stage because the light must come from above. When photomasks or reticles are being inspected, the opening is left open so that light from below can be used.
Some of the microscopes are joined to the electronics control box and outfitted with mask or wafer holders appropriate to the needs of the particular customer. The control box controls the rotation of the scanning stage (unless the operator desires to do so manually by other means provided), and controls the apertures and the amount of light by means of various controls. The Ergoplan can be used as a stand-alone unit for photomask or wafer inspection, or it can be upgraded to act as a high performance, fully automatic system, labeled as the “MIS-200".
The merchandise was entered under subheading 9031.40.60, HTSUS, as measuring and checking instruments for inspecting semiconductor wafers and devices. The entries were liquidated on December 8, 1995, under subheading 9011.20.80, HTSUS, as compound optical microscopes. The protest was timely filed on March 6, 1996.
The 1995 subheadings under consideration are:
9011: Compound optical microscopes, including those for photomicrography, cinemicrography or microprojection:
9011.20: Other microscopes, for photo-micrography, cinemicrography or microprojection:
9011.20.40: Provided with a means for photographing the image . . .
Goods classifiable under this provision have a column one, general rate of 4.7 percent ad valorem.
9011.20.80: Other. . . .
Goods classifiable under this provision have a column one, general rate of duty of 8.6 percent ad valorem.
9031.40.60: Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter. . . : [o]ther optical instruments and appliances: [o]ther: [f]or inspecting photomasks used to manufacture semiconductor devices; for inspecting semiconductor wafers and devices . . . .
Goods classifiable under this provision have a column one, general rate of duty of free.
ISSUE:
Whether compound optical microscopes used for semiconductor inspection are classifiable as compound optical microscopes of heading 9011, or as measuring or checking instruments of heading 9031, under the HTSUS?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.
In HQ 954662, dated December 7, 1994, Customs determined whether a surgical microscope met the terms of a compound optical microscope of heading 9011, or was classifiable as a surgical instrument under heading 9018. In making its determination, Customs consulted the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) which constitutes the official interpretation of the HTSUS. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 FR 35127, 35128 (August 23, 1989). In part, EN 90.11, pages 1475 1476, states that:
. . . the compound optical microscope of this heading has a second stage of magnification for the observation of an already magnified image of the object.
A compound optical microscope normally comprises:
(I) An optical system consisting essentially of an objective designed to produce a magnified image of the object, and an eyepiece which further magnifies the observed image. The optical system usually also incorporates provision for illuminating the object from below (by means of a mirror illuminated by an external or an integral light source), and a set of condenser lenses which direct the beam of light from the mirror on to the object.
(II) A specimen stage, one or two eyepiece holder tubes (according to whether the microscope is the monocular or binocular type), and an objective holder (generally revolving).
. . . This heading covers microscopes as used by amateurs, teachers, etc., and those for industrial use or for research laboratories. . . .
After examining this definition, Customs determined that the surgical microscope met the terms of a compound optical microscope and was therefore precluded from classification under heading 9018, as a surgical instrument. See HQs 956638 and 954855, dated December 7, 1994, for similar holdings on the classification of compound optical microscopes that were specialized for medical/surgical uses.
In Carl Zeiss, Inc. v. United States, Slip Op. 98-86 (CIT June 23, 1998) [hereinafter referred to as Zeiss], the Court of International Trade (CIT) determined the classification of compound optical microscopes which are principally used as medical or surgical instruments or appliances. The CIT noted that the microscopes had special design features that make them particularly useful for surgery, such as:
. . . magnification levels that are considerably lower than those of microscopes used for laboratory or industrial purposes, specially configured stands and movement mechanisms designed to aid hands-free use in surgery, built in co-axial sources of illumination (as opposed to the separate light sources usually placed underneath the object in microscopes used for laboratory or industrial purposes), and a notable difference in price in which these importations are approximately 10 times more costly than compound optical microscopes used for non-surgical purposes.
The plaintiff in Zeiss argued that although the surgical microscopes have the main characteristics of compound optical microscopes, they are not within the common meaning of that item because they have a distinct commercial identity. The CIT stated that it can accept this proposition “without undermining the fact that these microscopes are still accurately described for tariff purposes by the term ‘compound optical microscopes.’” See Zeiss. The court recognized that the ENs for the heading covering surgical instruments specifically excluded compound optical microscopes. In ruling in favor of the government’s classification under heading 9011, the CIT concluded that “[i]n the absence of any indication in the legislative history of the [HTSUS] that distinction were being made between surgical microscopes and compound optical microscopes, the court has to derive its understanding of the terms from the unambiguous meaning of the language used in the Headings.” See Zeiss.
The protestant states that Zeiss and the above rulings do not apply because there is no reason to apply the principle of relative specificity. We disagree. Because heading 9031 provides for: “[m]easuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter . . .” (emphasis added), Customs must determine whether another heading within chapter 90 more accurately describes the goods before classifying the goods under heading 9031. Furthermore, the EN to heading 9031 specifically excludes microscopes of heading 9011 or 9012. Like the plaintiff in Zeiss the protestant has provided information to support their claim that their microscopes have special design features that make them particularly useful for viewing semiconductor wafers.
We find that the microscopes do not meet the terms of heading 9031 because in their condition as imported, they cannot perform any measuring or checking function. The addition of the electronics control box merely allows the user to automatically adjust the stage and the optics as opposed to adjusting it manually by use of a knob. The control box does not change the function of the Ergoplan or the Polycon which is to allow the user to view very small objects close-up. Based upon the CIT decision in Zeiss, we find that the subject microscopes meets the definition of compound optical microscopes for heading 9011, HTSUS, because they have a second stage of magnification for the observation of an already magnified image of an object. Because the merchandise are compound optical microscopes under heading 9011, HTSUS, classification under heading 9031, HTSUS, is precluded.
Subsequent to the importation of the merchandise, the U.S. entered into the Information Technology Agreement (ITA), which went into effect on July 1, 1997 [see 62 FR 35909 (July 2, 1997)]. In notifying the other signatories, the U.S. stated that it would classify optical stereoscopic microscopes and photomicrographic microscopes “fitted with equipment specifically designed for the handling and transport of semiconductor wafers or reticles” under subheading 9031.41.00, HTSUS. The protestant states that the C-shape stands and the stages qualify as “equipment specifically designed for the handling and transport of semiconductor wafers”. We find that the stands and the stages are no different than the surgical microscopes’ specially configured stands and movement mechanisms designed for hands-free use in surgery. These design features do not change the fact that the microscopes, in their condition as imported, “are still accurately described for tariff purposes by the term ‘compound optical microscopes.’” See Zeiss.
The only remaining issue is whether the microscopes are provided with the means for photographing the image. Customs has consistently determined that microscopes capable of photomicrography, but which were imported without the device for photographing an image, cannot be considered to be "provided with a means for photographing the image". See HQ 956638, dated December 7, 1994; HQ 954640, dated October 25, 1994; HQ 088121, dated February 26, 1991; HQ 085754, dated December 26, 1989. The merchandise was imported without the means for photographing the images. Therefore, we find that the microscopes are to be classified as compound optical microscopes, provided without the means for photographing the image, under subheading 9011.20.80, HTSUS.
HOLDING:
The microscopes are classifiable under subheading 9011.20.80, HTSUS, which provides for: “[c]ompound optical microscopes, including those for photomicrography, cinemicro-graphy or microprojection: [o]ther microscopes, for photo-micrography, cinemicrography or microprojection: [o]ther. . . .” Goods classifiable under this provision have a column one, general rate of duty of 8.6 percent ad valorem.
The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division