CLA-2 RR:CR:GC 966296 DBS
Port Director
U.S. Bureau of Customs and Border Protection
4341 International Pkwy, Suite 600
Atlanta, GA 30354
RE: Protest 1704-02-100302; CD-Scanning Electron Microscope
Dear Port Director:
This is our decision on Protest 1704-02-100302 filed against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of a scanning electron microscope for measuring semiconductor wafers. The entries were liquidated on May 24, 2002, and the protest was timely filed on August 14, 2002.
FACTS:
The merchandise at issue is the S-9220 Hitachi Critical Dimension Measurement and Evaluation Scanning Electron Microscope (CD-SEM), and parts and accessories therefor. The S-9220 CD-SEM is essentially comprised of a scanning electron microscope and a cassette-to-cassette-type auto loader with a transport arm that loads and unloads semiconductor wafers automatically from the cassette to the specimen chamber of the microscope for inspection.
The S-9220 CD-SEM is designed to inspect patterns formed on semiconductor wafers and to measure the wafers in semiconductor fabrication. The system provides for both manual and automatic measuring. The dimensions (width/length) of patterns may be determined manually through coordinate values obtained during inspection. In automatic mode, the system can automatically detect patterns, as well as take width measurements and diameter (hole) measurements of the patterns.
You classified the S-9220 CD-SEM as a non-optical microscope under subheading 9012.00.00, HTSUS. The parts and accessories were classified accordingly. The protestant claims that the CD-SEM is classified as an electron beam microscope fitted with semiconductor handling and transport equipment in subheading 9031.80.40, HTSUS, and that the parts and accessories are classified in subheading 9031.90.70, HTSUS.
ISSUE:
Whether the scope of subheading 9012.10.00, HTSUS, includes the instant CD-SEM, and thus excludes it from measuring and checking equipment not specified or included elsewhere in subheading 9031.80.40, 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 accesssories
* * *
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
* * *
9031.90 Parts and accessories
Other:
9031.90.70 Of articles of subheading 9031.80.40
In HQ 962435, dated December 15, 1999, we classified the Measurement and Inspection SEM microscope, model MI-3080 (MI-3080), in subheading 9012.10.00, HTSUS, as a microscope. Like the S-9220 CD-SEM, the MI-3080 is comprised of scanning electron microscope and a cassette-to-cassette-type auto loader with a transport arm that loads and unloads multiple semiconductor wafers automatically from the cassette to the specimen chamber of the microscope for inspection in a control cabinet. Also like the S-9220 CD-SEM, it is used to control the process of the wafer production and measure the critical dimensions of line, space and pitch on the surface of semiconductor wafers and match the patterns on the wafers. However, we reconsidered that ruling and determined that it did not reflect the Customs position regarding these machines.
We revoked HQ 962435, pursuant to 19 U.S.C. §1625(c), and according 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 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.
Based on the facts discussed above, we have determined that the S-9220 CD-SEM is substantially similar to the MI-3080 CD-SEM. We further find that the S-9220 CD-SEM is classified in the same manner and pursuant to the same analysis as the MI-3080 CD-SEM. Therefore, the LAW AND ANALYSIS section of HQ 966482 is hereby incorporated by reference, and the S-9220 CD-SEM is classified in subheading 9031.80.40, HTSUS. A copy of HQ 966482 is enclosed for your reference.
For the parts and accessories subject to the instant protest, Note 2 to Chapter 90, HTSUS, applies. In relevant part, it provides that parts and accessories, if suitable for use solely or principally with a particular kind of machine, instrument or apparatus, or with a number of machines, instruments or apparatus of the same heading (including a machine, instrument or apparatus of heading No. 90.10, 90.13 or 90.31) are to be classified with the machines, instruments or apparatus of that kind. Note 2(b), Chapter 90, HTSUS. We find the subject parts and accessories are classified in subheading 9031.90.70, HTSUS.
By letter of November 11, 2003, the protestant submitted a claim for previous treatment accorded to substantially identical transactions pursuant to 19 C.F.R. §177.12(e)(3). However, because we have determined that revocation ruling HQ 966482 is applicable to the instant protest, we need not address this claim.
HOLDING:
The S-9220 CD-SEM 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."
The parts and accessories are classified in subheading 9031.90.70,
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: Parts and accessories: Other: Of articles of subheading 9031.80.40."
You are instructed to GRANT the protest.
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 Bureau of Customs and Border Protection 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