CLA-2 CO:R:C:M 955053 DWS
Ms. Mary E. Wright
Grunfeld, Desiderio, Lebowitz, Silverman & Wright
One Boston Place, Suite 1650
Boston, MA 02108
RE: Ellipsometer and Combination Ellipsometer/Spectrophotometer;
Revocation of NY 853463; Chapter 90, Note 3; Section XVI,
Note 4; NY's 884914 and 887144; 90.27; Encyclopedia of Applied
Physics; McGraw-Hill Encyclopedia of Science and Technology;
9031.40.00
Dear Ms. Wright:
This is in response to your letter of August 23, 1993, on
behalf of SOPRA, Inc., to the Area Director, New York Seaport,
concerning the classification of an ellipsometer and a combination
ellipsometer and spectrophotometer under the Harmonized Tariff
Schedule of the United States (HTSUS). Your letter has been
referred to this office for a response.
FACTS:
The merchandise consists of an ellipsometer (model no. MLM),
a combination ellipsometer and spectrophotometer (model no. GESP5),
and corresponding computer software. Model no. MLM is a multi-
layer monitor which is composed of a spectroscopic ellipsometer
with a spectral light range of 310nm to 1000nm, a robotic wafer
handler, a pre-alignment station, a sample stage, an electronic
cabinet, a computer, and software. The computer will be sourced
in the U.S. Typical applications of the model no. MLM include bulk
characterization, implant concentration analysis, single layer
absolute thickness and refractive index measurements for films, and
multi-layer thickness and composition analyses for complex
structures.
Model no. GESP5 is a combination instrument which is capable
of performing spectrophotometric measurements and polarization
measurements. The system allows spectrophotometric measurement of
light intensity to enable accurate measurements of scattering,
transmittance, and reflectance as a function of wavelength, angle,
and polarization. It is comprised of a spectroscopic ellipsometer
with a spectral light range of 230nm to 1000nm, a goniometric
bench, a source module, a photomultiplier, various electronic
devices, a sample holder, and software.
The subheadings under consideration are as follows:
8524.90.40: [r]ecords, tapes and other recorded media for
sound or other similarly recorded phenomena,
including matrices and masters for the
production of records, but excluding products
of chapter 37: [o]ther: [o]ther.
The general, column one rate of duty for goods classifiable
under this provision is 9.7 cents per meter squared of
recording surface.
9027.50.40: [i]nstruments and apparatus for physical or
chemical analysis (for example, polarimeters,
refractometers, spectrometers, gas or smoke
analysis apparatus) . . . : [o]ther instruments
and apparatus using optical radiations
(ultraviolet, visible, infrared): [e]lectrical.
The general, column one rate of duty for goods classifiable
under this provision is 4.9 percent ad valorem.
9031.40.00: [m]easuring or checking instruments, appliances
and machines, not specified or included elsewhere
in this chapter . . . : [o]ther optical
instruments and appliances.
The general, column one rate of duty for goods classifiable
under this provision is 10 percent ad valorem.
ISSUE:
Whether the ellipsometer and the combination ellipsometer and
spectrophotometer are classifiable under subheading 9027.50.40,
HTSUS, as other electrical instruments using optical radiations for
physical analysis, or under subheading 9031.40.00, HTSUS, as other
optical measuring instruments, not specified or included elsewhere
in chapter 90, HTSUS.
Whether the corresponding software for both models of
ellipsometers is classifiable under subheading 8524.90.40, HTSUS,
as other recorded media for sound or other similarly recorded
phenomena.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in accordance
with the General Rules of Interpretation (GRI's), taken in order.
GRI 1 provides that classification is determined according to the
terms of the headings and any relative section or chapter notes.
Because both models of ellipsometers are comprised of several
devices connected together, we must determine whether they are
functional units. Chapter 90, note 3, HTSUS, states that:
[t]he provisions of note 4 to section XVI apply also to this
chapter.
Section XVI, note 4, HTSUS, states that:
[w]here a machine (including a 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 covered by one of the headings
in chapter 84 or chapter 85, then the whole falls to be
classified in the heading appropriate to that function.
It is our position that both models of ellipsometers, under
section XVI, note 4, HTSUS, constitute functional units. We must
now determine the proper classification of the articles in the
heading appropriate to their function.
We first note that, in NY 884914, dated April 27, 1993, and
NY 887144, dated June 29, 1993, similar models of ellipsometers
were held to classifiable under subheading 9027.50.40, HTSUS.
In the Encyclopedia of Applied Physics, Vol. 6, p. 191, it is
stated that:
[t]he term ellipsometer, as broadly defined by Azzam and
Bashara (1977), refers to an instrument designed to analyze
the polarization state of a vector wave. This definition also
applies to the term polarimeter.
In the McGraw-Hill Encyclopedia of Science & Technology, 6th
Edition, the term "ellipsometry" is defined as:
[a] technique for determining the properties of a material
from the characteristics of light reflected from its surface.
The materials studied include semiconductors, liquids, and
metals. . . [t]he two chief applications of ellipsometry
are the study of surface properties and the area of
spectroscopic ellipsometry.
In understanding the language of the HTSUS, the Harmonized
Commodity Description and Coding System Explanatory Notes may be
utilized. The Explanatory Notes, although not dispositive, are to
be used to determine the proper interpretation of the HTSUS. 54
Fed. Reg. 35127, 35128 (August 23, 1989). In part, Explanatory
Note 90.27 (pp. 1513, 1517) states that:
[t]his heading includes:
(1) Polarimeters. Instruments for measuring the angle through
which the plane of polarisation of a ray of light is
rotated in passing through an optically active substance.
They consist essentially of a source of light, an optical
device comprising polarising and analysing prisms, a tube
holder in which the substance to be analysed is placed,
an
observation eyepiece and a measuring scale.
In addition to the essential optical elements of a
conventional polarimeter, electronic polarimeters are also
fitted with a photoelectric cell.
(2) - (28) xxx
(29) Photometers. Instruments for measuring the intensity of
light. The light to be measured and the standard source
of light are placed so that they illuminate a given
surface with equal intensity. If instead of comparing two
light intensities, comparison is made of their respective
spectra, the instrument then used is known as a
spectrophotometer.
Photometers are widely used for various optical processes
and analyses (for determining, for example, degree of
concentration, degree of brilliance or transparency of
solid substances; degree of exposure of photographic
plates or films (densitometers); depth of colour of
transparent or opaque solid substances or solutions).
It is our understanding, from the above noted definitions and
descriptions of the merchandise, that ellipsometers are used in the
measurement of the index and thickness of transparent layers, the
index and thickness of multi-layer thin films deposited on
substrates, surface and interface roughness measurements, and the
determination of thicknesses and compactness of super thin films.
Ellipsometers accomplish this purpose by using the technique of
measuring the plane of polarization of rays of light as they are
rotated in passing through an optically active substance. This
process is described in Explanatory Note 90.27(1) for polarimeters.
Also, concerning the combination ellipsometer and
spectrophotometer, spectrophotometers are specifically described
in Explanatory Note 90.27(29).
Therefore, it is our position that because both models of
ellipsometers function as electrical instruments using optical
radiations for physical analysis, they are classifiable under
subheading 9027.50.40, HTSUS.
The corresponding software for both models of ellipsometers
is separately classifiable under subheading 8524.90.40, HTSUS.
Because the merchandise is classifiable under heading 9027,
HTSUS, by the terms of heading 9031, HTSUS, the ellipsometers are
precluded from classification under heading 9031, HTSUS.
In NY 853463, dated July 6, 1990, issued to your firm on
behalf of Kao Systems, a coating thickness meter was held to be
classifiable under subheading 9031.40.00, HTSUS. The meter
measures the thickness of magnetic coating applied to the plastic
material of magnetic data discs, which are part of computer
diskettes. Light from a series of light emitting diodes (LED's)
is transmitted through the coated plastic sheets of the media discs
and then through an optical filter to a detector. The amount of
light transmitted through the coating is measured and then
correlated to the thickness of the coating on the disc.
Based upon the reasoning in this ruling, it is now are
position that the coating thickness meter in NY 853463 is more
specifically provided for under subheading 9027.50.40, HTSUS.
Through the use of optical radiations (LED's), the meter physically
analyzes the coated plastic sheets to determine the thickness of
the coating on the magnetic data disc.
HOLDING:
Model no. MLM ellipsometer and model no. GESP5 combination
ellipsometer and spectrophotometer are classifiable under
subheading 9027.50.40, HTSUS, as other electrical instruments using
optical radiations for physical analysis.
The corresponding software for both models of ellipsometers
is classifiable under subheading 8524.90.40, HTSUS, as other
recorded media for sound or other similarly recorded phenomena.
EFFECT ON OTHER RULINGS
Based upon the reasoning in this ruling, NY 853463 is revoked
pursuant to section 177.9(d)(1), Customs Regulations
[19 CFR 177.9(d)(1)].
Sincerely,
John Durant, Director