CLA-2 RR:CR:GC 966482 DBS
NNR Aircargo Services (USA) Inc.
Hook Creek Blvd & 145th, Unit C-1A
Valley Stream, NY 11581
RE: CD Measurement and Inspection Scanning Electron Microscope fitted with equipment specifically designed for the handling and transport of semiconductor wafers; Revocation of HQ 962435
Dear Sir or Madam:
On December 15, 1999, this office issued HQ 962435, our decision on the
Application for Further Review of Protest # 1001-98-102442, which classified a critical
dimension measuring and inspection scanning electron microscope in subheading
9012.10.00, Harmonized Tariff Schedule of the United States (HTSUS). The
merchandise was imported by Topcon Technologies, whom you represented at that
time. We have reconsidered HQ 962435 and determined the classification to be
incorrect.
Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), as amended
by section 623 of Title VI (Customs Modernization) of the North American Free Trade
Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of
the proposed revocation of the above identified ruling was published on July 2, 2003, in
the Customs Bulletin, Volume 37, Number 27. Five comments in support of the
proposed action were received in response to the notice.
FACTS:
The merchandise at issue, the Topcon Technologies MI-3080 Critical Dimension Measuring and Inspection Scanning Electron Microscope (CD-SEM), is comprised of a 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. The CD-SEM is used to control the process of the wafer production. It measures the critical dimensions of line, space and pitch on the surface of semiconductor wafers and matches the patterns on the wafers. The acceleration voltage is limited along with a fixed working distance and the stage (of the microscope) can only move in the X and Y directions.
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
* * *
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 instant merchandise appears to be clearly 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 MI-3080 CD-SEM is, at least in part, a scanning electron microscope, as evidenced by its name as well as its use of electron beams on various axes. While many standard scanning electron microscopes may utilize three axes for imaging, the instant microscope only rotates on two. However, scanning electron microscopes are now frequently used in the microelectronics industry for SEM-based metrology. See, e.g., András Vladár, et al, “Is Your Scanning Electron Microscope Hi-Fi?” Scanning: The Journal of Scanning Microscopies, Vol 17, 287-295 (1995) (abstracted version). The SEMs used in the microelectronics industry function with varying numbers of axes, up to six or more.
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. Moreover, there is no indication in the ENs that a specific number of axes are required of a SEM of heading 9012, HTSUS. The ENs regarding SEMs simply state the beams are “directed repeatedly onto different points of the sample.” Accordingly, the scope of the heading 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.
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 MI-3080 CD-SEM consists of a SEM and handling and transport equipment which work together and are designed specifically to measure and evaluate the line, space, pitch and patterns of semiconductor wafers, a clearly defined function. Therefore, the MI-3080 CD-SEM 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.
Heading 9031, HTSUS, provides for measuring and checking instruments, appliances and machines, not specified or included elsewhere in Chapter 90, HTSUS. By the terms of the heading, goods found to be described by any other heading in the chapter are not classifiable in heading 9031, HTSUS. The terms "measuring" and "checking" are not defined in the HTSUS or in the ENs. In United States v. Corning Glass Works, 66 CCPA 25, 27, 586 F.2d 822, 825 (1978), the court quoted definitions from Webster’s Third New International Dictionary, 381 (1971) (in determining the scope of the provision for measuring and checking Instruments not specially provided for in the predecessor tariff schedule to the HTSUS). "‘Check’ is defined as "to inspect and ascertain the condition of, especially in order to determine that the condition is satisfactory; … investigate and insure accuracy, authenticity, reliability, safety, or satisfactory performance of …; to investigate and make sure about conditions or circumstances…." The term "measure" is defined as follows: "[t]o ascertain the quantity, mass, extent, or degree of in terms of a standard unit or fixed amount …; measure the dimensions of; take the measurements of …; to compute the size of ... from dimensional measurements." Webster’s Third New International Dictionary, 1400 (1971). See HQ 965639, dated September 12, 2002; HQ 954682, July 14, 1994; HQ 950196, dated January 8, 1992.
The critical dimension measurements and evaluation of the lines, spaces and patterns of wafers performed by the MI-3080 CD-SEM clearly fall within the common meaning of measuring and checking. The measuring and checking functions are not simply a function of the microscope portion of the functional unit, but are the functions accomplished through the use of the different components together, fitted to accommodate one another. That is, each is essential to the performance of the function specific to the functional unit as a whole. That function is not covered elsewhere in Chapter 90, HTSUS.
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 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 and is comprised of a complete functional unit. Unlike the microscopes at issue in HQ 959109, the cassette-to-cassette auto loading equipment is fitted equipment specifically designed for the handling and transport of semiconductor wafers and reticles. Thus, the merchandise exceeds the scope of heading 9012, HTSUS. MI-3080 CD-SEM is within the scope of measuring and checking instruments, appliances and machines of heading 9031, HTSUS. As such, the MI-3080 CD-SEM is classified in subheading 9031.80.40, HTSUS.
In HQ 962435 we classified the instant product in subheading 9012.10.00, HTSUS. We 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.
It was not clear to us at that time that the functions of the combination of equipment together exceeded the scope of a microscope of heading 9012, HTSUS, by the application of Note 4 to Section XVI, HTSUS. As such, a CD-SEM fitted with the equipment specifically designed for the handling and transport of semiconductor wafers in its condition as imported is not subject to the exclusion of microscopes from heading 9031, HTSUS. At present, Customs is reviewing a product which we have determined is substantially similar to the MI-3080 CD-SEM. In reviewing that product, we now believe our statement, excerpted above, that there was “no clear indication of what the handling and transport equipment consists of or its function” is incorrect and does not represent the proper avenue of analysis of goods of this kind. Accordingly, HQ 962435 is revoked.
Under San Francisco Newspaper Printing Co. v. United States, 9 CIT 517, 620 F. Supp. 738 (1985), the liquidation of the entries covering the merchandise which was the subject of Protest 1001-98-102442 was final on both the protestant and U.S. Customs and Border Protection. Therefore, this decision has no effect on those entries.
HOLDING:
The model MI-3080 Measurement and Inspection Scanning Electron
Microscope 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.”
EFFECT ON OTHER RULINGS:
HQ 962435, dated December 15, 1999, is hereby REVOKED. In accordance with 19 U.S.C 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division