CLA-2 OT:RR:CTF:TCM H192481 LWF
Ms. Bari Wolfson
Manager, U.S. Trade Compliance
Kulicke & Soffa Industries, Inc.
2101 Blair Mill Rd.
Willow Grove, PA 19090
RE: Revocation of Headquarters Ruling Letters (HQ) H011054 and HQ H011056; tariff classification of wafer probe cards
Dear Ms. Wolfson:
This letter is to inform you that U.S. Customs and Border Protection (CBP) has reconsidered Headquarters Ruling Letter (HQ) H011054, dated September 9, 2011, concerning the tariff classification of two models of “wafer probe cards” used for the testing of integrated circuits (“ICs”). In HQ H011054, CBP classified the wafer probe cards in subheading 8536.90.40, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Electrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits (for example, switches, relays, fuses, surge suppressors, plugs, sockets, lamp-holders and other connectors, junction boxes), for a voltage not exceeding 1,000 V; connectors for optical fibers, optical fiber bundles or cables: Other apparatus: Terminals, electrical splices and electrical couplings; wafer probers.” We have reviewed HQ H011054 and find the ruling to be incorrect. Accordingly, for the reasons set forth below, we are revoking HQ H011054.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI, notice proposing to revoke Ruling Letters HQ H011054 and HQ H011056 was published on April 30, 2014, in Volume 48, Number 17, of the Customs Bulletin and Decisions. No comments were received in response to the Notice.
FACTS:
The articles at issue in HQ H011054 are described as two models of wafer probe cards—machines used to automate the simultaneous testing of the electrical properties of multiple integrated circuits on semiconductor wafers prior to the singulation and packaging of individual IC dies.
The manufacture and testing of ICs involves a series of complex operations, and for the purposes of providing a general description of this process, CBP has previously quoted a summary of “Probe Card Basics,” found on the website of JEM America Corp, Inc. (“JEM America”). See NY K86983, dated July 21, 2004; Probe Card Basics, JEM America Corp., Inc., http://www.jemam.com/probecard. Here, CBP once again considers JEM America’s “Probe Card Basics” to provide an accurate account of the IC manufacture and testing process and cites to the following passages from the JEM America website:
1.1 The Integrated Circuit
Semiconductor Integrated Circuits (ICs) are essential in today’s high-tech society. They can be found at the heart of a variety of products, from the simplest calculators to the fastest computers. As a result, the production of ICs has become a billion dollar industry, involving some of the world’s most advanced technology. [Wafer] probe cards are important in the final phase of this production process, playing a vital role in the testing and measuring of integrated circuits.
Figure 1-1: Integrated Circuit Wafer
Integrated circuits are built from round, thin sheets of semiconducting material. Standard sheets, or wafers, are commonly made of silicon. These wafers can range from 5 cm (~2 in) to 20 cm (~8 in) in diameter and are roughly 0.10 cm (~0.04 inch) thick. On a single wafer, anywhere from 50 to 200 identical integrated circuits, or die, can be made. The process of taking a simple silicon wafer and creating from it circuitry which can use and store electricity is a complex process. In a sense, the circuitry is “embedded” in the silicon, just below its surface. Within this microscopic maze of circuitry, electrical signals flow from one point to the next, much in the same way that water flows in a riverbed. To interact with the world outside of the IC, these signals are passed back and forth through small metal pads attached to the wafer’s surface (see Figure 1-1). The ability to make electrical contact with these metal pads is critical. Without some method of making this contact, the integrated circuit cannot be used.
1.2 Testing the IC
In the testing of integrated circuits, [wafer] probe cards play this vital role of contacting the metal pads on a wafer’s surface. ICs are tested by large machines, called testers, which send a series of electrical signals to each IC. During testing, the probe card and IC are held in place by another machine, called a prober. The prober might be described as the "arm" of a tester, doing the mechanical work of moving and aligning the probe card and IC. The probe card then functions primarily as the "hand" of a tester, allowing it to "touch" the metal pads on a wafer’s surface (see Figure 1-2). This establishes an electrical connection between tester and IC, allowing signals to flow freely between them. An ICs response to these test signals then indicates whether it has been made correctly. Good ICs can then be separated from bad ones. Probe cards are at the center of this testing process.
Figure 1-2: IC Tester and Prober (with probe card and wafer)
With the help of the prober, the probe card is lowered onto the IC wafer until the probe tips come into contact with the wafer’s metal pads. Test signals can then be passed between tester and IC.
Figure 1-3: Probe Card and Wafer
* * * * *
The wafer probe cards at issue in HQ H011054 resemble the “Probe Card” identified above in Figure 1-3 of JEM America’s “Probe Card Basics” and consist of a printed circuit board (“PCB”), numerous wafer probes (sometimes referred to as “probe needles”), and a structural support ring to which the wafer probes and PCB are attached. By transmitting and modifying electrical signals sent from automatic test equipment (“ATE”) to the semiconductor wafer, the probe cards provide an interface between the wafer and the ATE. During testing operations, electrical signals are sent from the ATE to the wafer probe card, where integrated circuits, resistors, capacitors, and other active components on the PCB manipulate the ATE signal and control the power and voltage characteristics of the signal before it is sent to the wafer via connections made by the wafer probes (probe needles). The wafer probes (probe needles), located along the underside of the probe card, make contact with the metal bonding pads of the wafer and facilitate the transmission of electrical signals between the probe card and the wafer. Returned electrical signals are sent from the wafer probe card to the ATE, where they are analyzed to measure the functional and operational integrity of the ICs located on the wafer.
ISSUE:
Whether the wafer probe cards are classified in heading 8536, HTSUS, as electrical apparatus for making connections to or in electrical circuits, or in heading 9030, HTSUS, as other instruments or apparatus for measuring or checking electrical quantities?
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principals set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context with requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order.
The following HTSUS provisions will be referenced:
8536 Electrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits (for example, switches, relays, fuses, surge suppressors, plugs, sockets, lamp-holders and other connectors, junction boxes), for a voltage not exceeding 1,000 V; connectors for optical fibers, optical fiber bundles or cables.
8536.90 Other apparatus:
8536.90.40 Terminals, electrical splices and electrical couplings; wafer probers.
8536.90.80 Other.
* * * * *
9030 Oscilloscopes, spectrum analyzers and other instruments and apparatus for measuring or checking electrical quantities, excluding meters of heading 9028; instruments and apparatus for measuring or detecting alpha, beta, gamma, X-ray, cosmic or other ionizing radiations; parts and accessories thereof.
Other instruments and apparatus:
9030.82.00 For measuring or checking semiconductor wafers or devices.
9030.90 Parts and accessories:
Other:
Printed circuit assemblies:
9030.90.66 Of instruments and apparatus of subheading 9030.40 or 9030.82.
* * * * *
Note 1(m) to Section XVI provides, in pertinent part, as follows:
This section does not cover:
(m) Articles of chapter 90;
* * * * *
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HS and are thus useful in ascertaining the proper classification of merchandise. It is CBP’s practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 85.36 states, in pertinent part, as follows:
(III) APPARATUS FOR MAKING CONNECTIONS TO OR IN
ELECTRICAL CIRCUITS
This apparatus is used to connect together the various parts of an electrical circuit. It includes:
…
(B) Other connectors, terminals, terminal strips, etc. These include small squares of insulating material fitted with electrical connectors (dominoes), terminal which are metal parts intended for the reception of conductors, and small metal parts designed to be fitted on the end of electrical wiring to facilitate electrical connection (spade terminal, crocodile clips, etc.)
* * * * *
Heading 8536, HTSUS, provides for “Electrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits (for example, switches, relays, fuses, surge suppressors, plugs, sockets, lamp-holders and other connectors, junction boxes), for a voltage not exceeding 1,000 V; connectors for optical fibers, optical fiber bundles or cables.” However, as Note 1(m) to Section XVI precludes classification of articles of Chapter 90 in this section, we must first examine whether the instant merchandise is classifiable in heading 9030, HTSUS.
Heading 9030, HTSUS, provides, in relevant part, for “instruments and apparatus for measuring or checking electrical quantities, excluding meters of heading 9028,” although terms “apparatus” and “checking” are not defined in the HTSUS or the ENs. When a tariff term is not defined by the HTSUS or the legislative history, its correct meaning is its common, or commercial, meaning. Rocknel Fastener, Inc. v. United States, 267 F.3d 1354, 1356 (Fed. Cir. 2001) (“To ascertain the common meaning of a term, a court may consult ‘dictionaries, scientific authorities, and other reliable information sources’ and ‘lexicographic and other materials.” (quoting C.J. Tower & Sons of Buffalo, Inc. v. United States, 673 F.2d 1268, 1271 (Fed. Cir. 1982))).
The Oxford English Dictionary defines the term “apparatus,” in relevant part, as “equipment, material, mechanism, machinery; or the mechanical requisites employed in scientific experiments or investigations.” Likewise, the term has been frequently construed by the courts to mean a “group of devices or a collection or set of materials, instruments or appliances to be used for a particular purpose or a given end.” ITT Thompson Industries, Inc. v. United States, 3 C.I.T. 36, 44 (1982).
With regards to the term “checking,” the courts have provided guidance on the common meaning of the word as used under older tariff schedules, namely the Tariff Schedule of the United States (TSUS). In Corning Glass Works v. United States, 586 F.2d 822 (CCPA 1978), the United States Court of Customs and Patent Appeals (CCPA) defined “check” as “to inspect and ascertain the condition of[,] especially in order to determine that the condition is satisfactory.” Corning Glass Works, 586 F.2d at 822 (citing Webster’s Third New International Dictionary, 381 (1971)); Photonetics, Inc. v. United States, 659 F. Supp. 2d 1317, 1323 (Ct. Int’l Trade 2009). Furthermore, the CCPA in Corning Glass Works concluded that “‘checking instruments’ clearly and unambiguously encompasses machines… that carry out steps in a process for inspecting ampules to determine whether they conform to an imperfection-free standard.” Corning Glass Works, 586 F.2d at 822.
While prior TSUS cases may be instructive in interpreting identical language in the HTSUS, they are not dispositive. H.R. Conf. Rep. No. 100-576, at 549-50 (1988), reprinted in 1988 U.S.C.C.A.N. 1547, 1582-83. As explained in the House Conference Report accompanying the Omnibus Trade and Competitiveness Act of 1988, which enacted the HTSUS:
[i]n light of the significant number and nature of changes in nomenclature from the TSUS to the HTSUS, decisions by the Customs Service and the courts interpreting the nomenclature under the TSUS are not to be deemed dispositive in interpreting the HTSUS. Nevertheless, on a case-by-case basis prior decisions should be considered instructive in interpreting the HTSUS, particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTSUS.
Consistent with the CCPA’s definition of the term “checking instruments” in Corning Glass Works, CBP has previously classified machines that carry out steps in a process for inspecting and ascertaining the condition of electrical quantities as measuring or checking instruments and apparatus of Ch. 90. In NY K86983, dated July 21, 2004, CBP classified two models of wafer probers, used in the testing of ICs to automatically position etched wafers underneath a wafer probe card, in subheading 9030.82.00, HTSUS, as other instruments or appliances for measuring or checking electrical quantities, for measuring or checking semiconductor wafers or devices. There, CBP noted that the Tokyo Electron P-8 and P-12XL Fully Automatic Wafer Probers were incapable of performing independent measuring or checking functions, but that the machines were designed to be combined with an ATE and wafer probe card to form an IC testing system. Because the wafer probers were used to precisely position the ICs of an etched wafer underneath the probe needles of a wafer probe card, thereby establishing electrical connections between the ATE, wafer probe card, and test wafer ICs, CBP determined that the wafer prober machines were properly classified as measuring or checking instruments. See also NY A89407, dated November 25, 1996, subsequently modified by HQ 961332, dated April 7, 1998 (classifying wafer probers for IC testing in subheading 9030.82.00, HTSUS). Similarly, CBP has classified various models of ATE used to test and check ICs in subheading 9030.82, HTSUS. See, e.g., NY R04578, dated September 7, 2006; HQ 965528, dated August 14, 2002; and NY E81071, dated May 21, 1999.
Having examined the common, or commercial, meanings of the terms “apparatus” and “checking” as used in heading 9030, HTSUS, we find that the instant wafer probe cards are accurately described as apparatus that carry out steps in a process for determining the condition of the electrical properties of ICs etched onto semiconductor wafers. First, with regards to the term “apparatus,” the wafer probe cards are described as assemblies consisting of a PCB, numerous wafer probes (probe needles), and a reinforced structural support onto which the PCB and wafer probes (probe needles) are mounted. Second, the wafer probe cards perform “checking” operations, because they contain PCBs that manipulate and control the power and voltage characteristics of electrical signals before such signals are sent to the wafer via connections made by the wafer probes (probe needles). The presence of a PCB allows the wafer probe cards to interpret coded instructions sent by the automatic test equipment (ATE), determine the timing and order of signals to be sent to the test subject ICs, and manage data flow between the wafer probe card and the ATE. Inasmuch as the manipulation and control of electrical signals is a necessary step to test the functional and operational integrity of the ICs on semiconductor wafers, CBP concludes that the probe cards are accurately described as checking instruments, as defined by the CIT in Corning Glass Works, 586 F.2d at 822. Consequently, we find that the probe cards are classified in heading 9030, HTSUS, which provides for “Oscilloscopes, spectrum analyzers and other instruments and apparatus for measuring or checking electrical quantities, excluding meters of heading 9028; instruments and apparatus for measuring or detecting alpha, beta, gamma, X-ray, cosmic or other ionizing radiations; parts and accessories thereof.”
As the probe cards are described fully in heading 9030, HTSUS, as apparatuses for measuring or checking electrical quantities, their classification under heading 8536, HTSUS, is precluded by application of Note 1(m) to Section XVI.
HOLDING:
By application of GRI 1, the probe cards are classified under heading 9030, HTSUS, specifically in subheading 9030.82.00, which provides for “Oscilloscopes, spectrum analyzers and other instruments and apparatus for measuring or checking electrical quantities, excluding meters of heading 9028; instruments and apparatus for measuring or detecting alpha, beta, gamma, X-ray, cosmic or other ionizing radiations; parts and accessories thereof: Other instruments and apparatus: For measuring or checking semiconductor wafers or devices.” The 2014 column one, general rate of duty is free.
Duty rates are provided for convenience only and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at http://www.usitc.gov.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin and Decisions.
EFFECT ON OTHER RULINGS:
In accordance with the above analysis, HQ H011054, dated September 9, 2011, and HQ H011056, dated September 9, 2011, are hereby REVOKED.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division