CLA-2 RR:CR:GC 965899 JAS
Ms. Mary E. Wright
Grunfeld, Desiderio, Lebowitz, Silverman & Wright
One Boston Place, Suite 1650
Boston, MA 02108
RE: Ellipsometer and Combination Ellipsometer/Spectrophotometer;
HQ 955053 Affirmed
Dear Ms. Wright:
In HQ 955053, which we issued to you on behalf of SOPRA, Inc., on October 4, 1993, an ellipsometer and a combination ellipsometer and spectrophotometer were held to be classifiable as instruments and apparatus for physical or chemical analysis using optical radiations, in subheading 9027.50.40, Harmonized Tariff Schedule of the United States (HTSUS).
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 modification of HQ 955053 was published on October 9, 2002, in the Customs Bulletin, Volume 36, Number 41. Three comments were received in response to that notice, including one from you. We have thoroughly reviewed the classification set forth in HQ 955053 and now believe that it is correct.
You state that the model MLM ellipsometer is no longer being imported so your comments are limited to the model GESP5 spectroscopic ellipsometer. However, in the interests of thoroughness and for the purpose of guidance with respect to classification of the same or similar merchandise, our analysis will cover both models.
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FACTS:
As described in HQ 955053, the merchandise consists of an ellipsometer (model MLM), a combination ellipsometer and spectrophotometer (model GESP5), and corresponding computer software. Model 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 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 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 HTSUS provisions under consideration are as follows:
[i]nstruments and apparatus for measuring or checking quantities of heat, sound or light…
9027.50 Other instruments and apparatus using optical radiations
(ultraviolet, visible, infrared)
9027.50.40 Electrical
* * * *
Measuring or checking instruments, appliances and machines, not
specified or included elsewhere in [chapter 90]
Other optical instruments and appliances:
Other
9031.49.90 Other
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ISSUE:
Whether the ellipsometer and the combination ellipsometer and
spectrophotometer are goods provided for in heading 9027, HTSUS, or in heading 9031.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in accordance
with the General Rules of Interpretation (GRIs), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.
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 HTSUS and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
We agree that if the goods are found to be described by heading 9027 then, by its terms, heading 9031 does not apply. You offer the following in support of classifying the models MLM and GESP5 in subheading 9027.50.40, HTSUS: the goods fall within the first of three categories of merchandise in heading 9027, HTSUS, i.e., apparatus for physical or chemical analysis, noting that spectrometers are listed in the heading text; ellipsometers are substantially similar, by function and design, to polarimeters which are instruments for physical analysis described in the ENs to heading 9027; classification in heading 9031, HTSUS, is not appropriate, as the goods are specified and included elsewhere, i.e., in heading 9027.
Note 4 to Section XVI applies to goods of Chapter 90, pursuant to Chapter 90, Note 3, HTSUS. In this regard, Section XVI, note 4, HTSUS, states, in relevant part, that machines including a combination of machines, consisting 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. HQ 955053 found that as imported, both models of ellipsometers, constituted functional units under Section XVI, Note 4, HTSUS. The ruling continued by examining the common meaning of the term “elipsometer” and indicated that it applied to polarimeters as well. HQ 955053 then noted that popolarimeters and photometers, as well as spectrophotometers, were listed and described in the ENs to 9027.
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Initially, it appears that at least the model MLM, imported without the computer, constitutes an incomplete or unfinished functional unit, with the imported components imparting to the whole the essential character of an ellipsometer. See HQ 965638, dated July 16, 2002, and related cases. From the above noted definitions and descriptions of the merchandise, it was noted 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 thickness 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. The conclusion then followed that both models of ellipsometers functioned as electrical instruments using optical radiations for physical analysis, classifiable under subheading
9027.50.40, HTSUS. The merchandise was found to be precluded from classification in heading 9031, HTSUS. After a complete review of the available information, including but not limited to your comments of November 7, 2002, we now believe that the above-stated analysis is accurate and supports classification of both the model MLM and the GESP5 in heading 9027, HTSUS.
HOLDING:
Under the authority of GRI 1 and Section XVI, Note 4, HTSUS, where appropriate, the model MLM ellipsometer and model GESP5 combination ellipsometer and spectrophotometer are provided for in heading 9027. They are classifiable in
subheading 9027.50.40, HTSUS, as other electrical instruments and apparatus using optical radiations for physical or chemical analysis. For the reasons stated, HQ 955053, dated October 4, 1993, is affirmed.
Sincerely,
Myles B. Harmon, Acting Director
Commercial Rulings Division