CLA-2 RR:CR:GC 966185 TPB
Port Director
U.S. Customs Service
P.O. Box 55580
Portland, OR 97328-5580
RE: Protest Number 2904-02-100316; Dual Beam System; Scanning Electron
Microscope; Handling and Transport Equipment; ITA.
Dear Port Director:
This is our decision on Protest No. 2904-02-100316, filed against your classification of a dual beam device under the Harmonized Tariff Schedule of the United States (“HTSUS”), imported by FEI Company (“FEI”/”Protestant”). In reaching our conclusion, consideration was given to additional information submitted by Protestant on July 23, 2003.
FACTS:
The merchandise at issue, the Altura 835 Dual Beam System is an 8” focused dual beam device which employs an ion beam for milling and preparing semiconductor wafers for defect and quality control examination using a scanning electron microscope. The system consists of: (1) an immersion field emission scanning electron microscope (FE-SEM); (2) a focused ion-beam (FIB) to mill and prepare cross-sections of the semiconductor wafers for inspection and analysis (using the electron microscope); and (3) a “load lock” which transfers the semiconductor wafers to the stage.
The “load lock” consists of two main parts: the load lock chamber and the load lock arm. The load lock chamber consists of a milled aluminum block with a slit that functions as a feed-through to the specimen chamber. The specimen chamber also has a slit. The wafer (holder) is transported from the load lock chamber to the specimen chamber by the load lock arm. This is done by rotating the arm to the stage. Transport of the wafer to the stage is achieved by a Z-translation of the stage in combination with a clamping mechanism.
The entries were liquidated on May 30, 2002, and this protest timely filed on August 22, 2002.
ISSUE:
Whether the Altura 835 Dual Beam System is classified under heading 9012, HTSUS, as a microscope, or under heading 9031, HTSUS, which provides specifically for electron beam microscopes fitted with handling and transport equipment for semiconductor wafers and reticles.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The 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
* * *
9012.90.00 Parts and accessories
* * *
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 the equipment specifically designed for the handling and transport of semiconductor wafers or reticles
While the Protestant argues that the instant merchandise is provided for in subheading 9031.80.40, HTSUS, according to GRI 1 we must first determine classification at the 4-digit heading level. The ENs to heading 9031, HTSUS, exclude from classification in that heading microscopes of headings 9011 or 9012, HTSUS. Microscopes of heading 9012, HTSUS, include “electron microscopes [which] differ from optical microscopes in that they use a beam of electrons instead of light rays.” EN 90.12(A). EN 90.12(A) states that the heading 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 ENs also provide in part that 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 fibres, colloids, etc.; examination of the structure of metals, paper, etc.).” Id.
The Altura 835 Dual Beam System is, at least in part, an electron beam microscope. Semiconductor wafers are processed, cut and milled, by an ion beam milling device and examined for defects and quality control using the electron beam microscope.
The legal text of the heading “microscopes other than optical microscopes” is broad, explicitly excluding only one class of microscope (optical). The ENs buttress the breadth of the legal text by stating that electron microscopes for several uses in various fields of study are included in the heading. The ENs regarding SEMs simply state the beams are “directed repeatedly onto different points of the sample.” Accordingly, the scope of heading 9012, HTSUS, encompasses many SEMs, including those designed for use in the semiconductor wafer industry. However, the instant merchandise is not just a SEM. It is a SEM fitted with equipment specifically designed for handling and transporting semiconductor wafers via the load lock system.
When the U.S. entered into the Information Technology Agreement (ITA), which went into effect on July 1, 1997, Presidential Proclamation No. 7011; 62 FR 35909 (July 2, 1997), the U.S. notified the other signatories that it would classify “electron beam microscopes fitted with the equipment specifically designed for the handling and transport of semiconductor wafers or reticles” under subheading 9031.80.40, HTSUS. Under the ITA, the U.S. added other provisions which included microscopes fitted with “equipment specifically designed for the handling and transport of semiconductor wafers or reticles” under various provisions of heading 9031, HTSUS, such as 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. This latter provision was discussed in HQ 959109, dated October 5, 1998.
In HQ 959109, we classified two binocular microscopes designed for examining photomasks and semiconductor wafers in heading 9011, HTSUS. Though the merchandise at issue was entered prior to the ITA, Customs discussed the relevance of the ITA with respect to the merchandise at issue. The microscopes, in their condition as imported, could not perform any measuring or checking function as they did not measure a quantity or check against a standard. Further, the stands and specimen stages with which they were fitted, although they were motorized, were not deemed “specifically designed for the handling and transport…” because the stage equipment was no more than that which might ordinarily be part of those types of microscopes in heading 9011, HTSUS. That is, they simply held a wafer in place. See Carl Zeiss, Inc. v. United States, 16 F. Supp. 2d 1097 (CIT 1998), aff’d 195 F. 3d 1375, (Fed. Cir. 1999).
As discussed above, the instant merchandise performs measuring and checking functions upon importation. Unlike the microscopes at issue in HQ 959109, the load lock is specifically designed for the handling and transport of semiconductor wafers and reticles via its load lock system. Note 3 to Chapter 90, HTSUS states that the provisions of Note 4 to Section XVI apply to Chapter 90. Section XVI, Note 4, HTSUS, provides in relevant part that where a machine or combination of machines consists of individual components (whether separate or interconnected by piping, by transmission devices, by electric cables or by other devices) intended to contribute together to a clearly defined function then the whole falls to be classified in the heading appropriate to that function. Included in this note are “functional units,” which are described in Part (VII) of the General ENs to Section XVI, which accordingly applies to Chapter 90. See Part (IV), General ENs, Chapter 90. In addition to reiterating the language in the legal note, the ENs on functional units per Section XVI, Note 4 state, in part, the following:
For the purposes of this Note, the expression “intended to contribute together to a clearly defined function” covers only machines and combinations of machines essential to the performance of the function specific to the functional unit as a whole, and thus excludes machines or appliances fulfilling auxiliary functions and which do not contribute to the function of the whole.
The Altura 835 consists of a SEM and handling and transport equipment which work together and are designed specifically to cut, mill and examine semiconductor wafers, a clearly defined function. Therefore, the Altura 835 constitutes a functional unit, which is classified according to its clearly defined function. As such, the exclusion of microscopes in EN 90.31 would not apply to this merchandise.
For those reasons, the merchandise exceeds the scope of heading 9012, HTSUS. The Altura 835 is within the scope of measuring and checking instruments, appliances and machines of heading 9031, HTSUS. As such, the Altura 835 would be classifiable in subheading 9031.80.40, HTSUS.
In liquidating the Altura 835 under heading 9012, you cited to HQ 962435, dated December 15, 1999, which classified an electron microscope similar to the Altura 835 in subheading 9012.10.00, HTSUS. In that ruling, Customs stated the following:
[T]he 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.
Customs has recently had an opportunity to re-examine that ruling and pursuant to section 625(c), Tariff Act of 1930, as amended, (19 U.S.C. 1625(c)), following a notice and comment period, revoked it pursuant to the analysis set forth in HQ 966482, dated August 19, 2003. Notice of final revocation was published on September 17, 2003 in the Customs Bulletin, Volume 37, Number 38. HQ 966482 is effective for merchandise entered or withdrawn from warehouse for consumption on or after November 16, 2003. HQ 966482 states, in part, that the classification of the MI-3080 is governed by Section XVI, Note 4, HTSUS, regarding “functional units.” The microscope combined with the auto loader and transport arm, deemed “equipment specifically designed for the handling and transport of semiconductor wafers,” constitutes a functional unit as defined by the note. The components work together and are designed specifically to measure and evaluate the line, space, pitch and patterns of semiconductor wafers, a clearly defined function. As such, the MI-3080 CD-SEM exceeds the scope of a microscope of heading 9012, HTSUS. It is classified according to its clearly defined function: a measuring and checking device of heading 9031, HTSUS.
The merchandise presently at issue and that of HQ 966482 are substantially similar. Accordingly, the Altura 835 would be classified in subheading 9031.80.40, HTSUS.
HOLDING:
The Altura 835 is classified in subheading 9031.80.40, HTSUS, which provides for, "Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter; profile projectors; parts and accessories thereof: Other instruments, appliances and machines: Electron beam microscopes fitted with the equipment specifically designed for the handling and transport of semiconductor wafers or reticles."
You are instructed to GRANT the protest.
In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), 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 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 make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division