CLA-2 RR:CR:GC 962435 HMC
Port Director of Customs
New York/JFK Area
Building 77
Jamaica, NY 11430
RE: Protest 1001-98-102442; Measurement and Inspection SEM Microscope, Model MI-3080; Microscopes, Other than Optical Microscopes
Dear Port Director:
This is our decision on Protest 1001-98-102442, filed against your classification of the Measurement and Inspection SEM microscope, model MI-3080 (MI-3080) entered in 1997. The entry under protest was liquidated on July 10, 1998, and this protest was timely filed on July 15, 1998.
FACTS:
Protestant describes the MI-3080 as an electron beam microscope fitted with equipment specifically designed for handling and transport of semiconductor wafers. Protestant also states that the merchandise is specifically designed for the critical dimension measurement of a line, space or pitch on the surface of the semiconductor wafer. A production line uses the MI-3080 to control the process while making wafers. The automatic wafer loading along with pattern matching capability makes the tool specific to production. The acceleration voltage is limited along with a fixed working distance and the stage can only move in the X and Y direction.
The merchandise was entered and liquidated under a provision for microscopes other than optical microscopes under subheading 9012.10.00 of the Harmonized Tariff Schedule of the United States (HTSUS). However, the protestant claims that the merchandise is classifiable under subheading 9031.80.40, HTSUS, as other measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter, electron beam microscopes fitted with equipment specifically designed for the handling and transport of semiconductor wafers or reticles.
The 1997 HTSUS provisions under consideration are as follows:
9012 Microscopes other than optical microscopes; diffraction apparatus; parts and accessories thereof:
9012.10.00 Microscopes other than optical microscopes; diffraction apparatus
* * * *
9031 Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter; profile projectors; parts and accessories thereof:
9031.80 Other instruments, appliances and machines:
9031.80.40 Electron beam microscopes fitted with equipment specifically designed for the handling and transport of semiconductor wafers or reticles
ISSUE:
Whether the measurement and inspection SEM microscope is classifiable as other measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter; electron beam microscopes fitted with equipment specifically designed for the handling and transport of semiconductor wafers or reticles under subheading 9031.80.40, HTSUS, or as microscopes, other than optical microscopes under subheading 9012.10.00, HTSUS.
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 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, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.
Heading 9031, HTSUS, provides for “Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter...” Accordingly, we must first determine whether the merchandise is described within heading 9012, HTSUS, as a microscope other than an optical microscope.
The Harmonized Commodity Description And Coding System Explanatory Notes (EN’s) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the EN’s provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise. Customs believes the EN’s should always be consulted. See T.D. 89 80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
General EN (I) to Chapter 90, HTSUS, at page 1576, states, in part, that
The Chapter includes in particular:
...
(F) A large group of measuring, checking or automatically controlling instruments and apparatus, whether or not optical or electrical and in particular those of heading 90.32 as defined in Note 6 to the Chapter.
Some of these instruments are specified in certain headings, for example, compound optical microscopes (heading 90.11), electron microscopes (heading 90.12), other instruments and apparatus are covered by more general descriptions in headings which refer to a particular science, industry, etc. (e.g., astronomical instruments of heading 90.05, surveying instruments and appliances of heading 90.15, X ray, etc., apparatus of heading 90.22).
EN 90.12, at page 1598, states that this heading includes:
(A) Electron microscopes differ from optical microscopes in that they use a beam of electrons instead of light rays.
The normal type of electron microscope is an assembly of the following devices usually enclosed in a common frame as a unit:
(1) A device (known as an electron gun) for emitting and accelerating the electrons.
(2) A system (playing the part of the optical system of an ordinary microscope) consisting of electrostatic or electromagnetic “lenses” (which are respectively electrically charged plates or coils carrying a current); these act as condenser, objective and projector. There is usually also a further so called field_“lens”, between the objective and the projector, which serves to vary the range of magnification while not altering the scope of the scanned field.
(3) The specimen stage.
(4) The vacuum pump unit which maintains a vacuum in the electron tube; these are sometimes self contained units connected to the appliance.
(5) The elements for visual observation on a fluorescent screen and for photographic recording of the image.
(6) Control stands and panels bearing the elements controlling and regulating the electron beam.
This heading also includes scanning electron microscopes in which a very fine beam of electrons is directed repeatedly onto different points of the sample. Information is obtained by measuring, for example, the electrons transmitted, the secondary electrons emitted, or the optical rays. The result may then be displayed on a monitor screen which can be incorporated in the microscope.
The electron microscope has many uses both in the field of pure science (biological or medical research, composition of matter, etc.), and in industrial technique (examination of fumes, dust, textile fibers, colloids, etc.; examination of the structure of metals, paper, etc.).
Evidence provided by the protestant shows that the MI-3080 is an electron beam microscope fitted with equipment specifically designed for handling and transport of semiconductor wafers. The protestant provided descriptive literature for model MI-4080, another system which it described as the current instrument with some minor improvements. This literature states that “all chips on a 200 mm wafer can be fully automatically measured up to magnifications of 100,000X and 200,000X.... The multiple measurement function allows the high-speed and many points automated measurements within one SEM image. There is no clear indication of what the handling and transport equipment consists of or its function. Nevertheless, it is hard to see how the addition of elements that do no measuring or checking, just precision handling, can convert a microscope into a measuring or checking instrument.
We note that EN 90.12 states that “information is obtained by measuring, for example, the electrons transmitted....” Thus, measurement and checking have always been a usage of microscopes. We also note that EN 90.31, at page 1654, state that
In addition to profile projectors, this heading covers measuring or checking instruments, appliances and machines, whether or not optical. It should, however, be noted that this group does not include any instruments, apparatus, etc., falling in headings 90.01 to 90.12 or 90.15 to_90.30; in particular, the following are therefore excluded:
...
(b) Microscopes (heading 90.11 or 90.12).
We therefore conclude that the merchandise fits the description of heading 9012, which provides for microscopes, other than optical microscopes. The merchandise is precluded from classification under subheading 9031.80.40, HTSUS. See HQ 088231, dated March 8, 1991, for a similar finding.
HOLDING:
The Measurement and Inspection SEM Microscope, Model MI-3080, is classifiable under subheading 9012.10.00, HTSUS, as “Microscopes other than optical microscopes; diffraction apparatus; parts and accessories thereof: Microscopes other than optical microscopes; diffraction apparatus.”
This 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, you are to mail this decision, together with the Customs Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division