CLA-2 OT:RR:CTF:TCM H268513 LWF
Christine Denny
Senior Manager, Customs & Indirect Tax
Qualcomm, Inc.
5775 Morehouse Drive
San Diego, CA 92121-1714
RE: Tariff classification of a wafer probe card, probe interface board (PIB), and load board
Dear Ms. Denny:
This is in reply to your letter of July 2, 2015, to U.S. Customs and Border Protection (CBP), on behalf of Qualcomm, Inc. (“Qualcomm”), seeking a prospective ruling on the tariff classification of a wafer probe card, probe interface board (“PIB”), and load board under the Harmonized Tariff Schedule of the United States (HTSUS). For the reasons set forth below, CBP concludes that the wafer probe card, PIB, and load board are classifiable under heading 9030, HTSUS, specifically in subheading 9030.90.66, as “parts and accessories” of instruments and apparatus of subheading 9030.40 or 9030.82.
FACTS:
The merchandise at issue consists of a wafer probe card, probe interface board (PIB), and load board used for the testing of integrated circuits (“ICs”). Specifically, the articles are used in automated test equipment (“ATE” or “tester”) to test and validate IC die during different stages of the semiconductor manufacturing process. Whereas the wafer probe card and PIB are used in combination with one another to test “wafer die” prior to the “packaging” of individual ICs, the load board is used during later-stages of the manufacturing process to conduct final testing on “packaged die.”
The Qualcomm wafer probe card consists, in relevant part, of a printed circuit board (“PCB”), wafer probes, and a structural ring. Similarly, the Qualcomm PIB is primarily constructed of a PCB and connectors that serve as an interface with the wafer die under test. During the fabrication process, the wafer probe card and PIB are both used in conjunction with the automatic test equipment (ATE or tester) to serve as an interface for electrical signals to pass between the ATE and device under test (“DUT”), typically wafer or packaged die. Additionally, the PIB helps position the wafer probe card to ensure that the wafer probes are properly aligned with each die on the wafer. Once correctly positioned, the tester sends electrical signals to the PIB, through the wafer probe card, and ultimately to the individual dies on the wafer.
The Qualcomm load board is constructed of a PCB, stiffener, test sockets, and interface pads. Like the wafer probe card and PIB, the load board is used to test the electrical properties of integrated circuit dies. However, whereas the wafer probe card and PIB are used to test integrated circuit die located on a wafer, the load board is used to test die that have undergone singulation and packaging.
During testing of wafer die and packaged die, the Qualcomm ATE tester controls all electrical signals that are passed back and forth between the tester and the die under test. The wafer probe card, PIB, and load board serve as an interface between the tester and the DUT, and the returned electrical signals merely pass through the wafer probe card and PIB or the load board to the tester. Because the Qualcomm wafer probe card, PIB, and load board do not manipulate the electrical signals sent from the tester to the die, the hardware serves as a “passive” interface between the tester and the device under test. Accordingly, after electrical signals are sent from the tester to the wafer die or packaged die under test, the returned electrical signals pass through the wafer probe card and PIB (or load board, in the case of packaged die testing) to the tester, where they are analyzed to validate the properties of the wafer die or packaged die.
ISSUE:
Whether the Qualcomm wafer probe card, probe interface board (PIB), and load board are classified under subheading 9030.82, HTSUS, as other instruments and apparatus for measuring or checking semiconductor wafers or devices; or whether they are classified under subheading 9030.90, HTSUS, as parts and accessories of instruments and apparatus of subheading 9030.40 or 9030.82.
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. GRI 6 provides, in pertinent part, that the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to GRIs 1 through 5.
The following HTSUS provisions will be referenced:
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.
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Note 2(b) to Chapter 90, HTSUS, provides, in pertinent part, as follows:
2. Subject to Note 1 above, parts and accessories for machines, apparatus, instruments or articles of this Chapter are to be classified according to the following rules:
[…]
(b) Other 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 90.10, 90.13 or 90.31) are to be classified with the machines, instruments or apparatus of that kind;
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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 90.30, HS, states, in pertinent part, as follows:
PARTS AND ACCESSORIES
Subject to the provisions of Notes 1 and 2 to this Chapter (see the General Explanatory Note), separately presented parts and accessories of instruments or appliances of this heading remain classified here.
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Upon consideration of the physical description and function of the instant Qualcomm wafer probe card, PIB, and load board, CBP notes that there is no dispute that the merchandise is properly described by the text of heading 9030, HTSUS, which provides, in relevant part, for instruments and apparatus for measuring or checking electrical quantities, and parts and accessories thereof.
Discussed at length in Headquarters Ruling Letter (HQ) H192481, dated June 25, 2014, the courts have provided guidance on the common meaning of the term “checking,” and have described the action 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 U.S. Court of Customs and Patent Appeals (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.
Consistent with the CCPA’s definition of the term “checking instruments,” 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 heading 9030, HTSUS. For example, in New York Ruling Letter (NY) K86983, dated July 21, 2004, CBP classified two models of wafer probers—machines used during wafer die testing to precisely position an etched wafer underneath the probe needles of a wafer probe card—in subheading 9030.82, HTSUS. 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 performed operations in combination with other automated test equipment (for example, a tester unit and wafer probe card) to form a complete wafer die testing system. 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 testers—machines used to control, measure, and evaluate the transmission of electrical signals to wafer die—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.
Most recently, in ruling letter HQ H192481, CBP considered the tariff classification of certain wafer probe cards that performed specific operations in the testing and validation of the electrical properties of wafer die. Specifically, the wafer probe cards at issue in H192481 were constructed with PCBs designed to “manipulate and control the power and voltage characteristics of electrical signals before such signals are sent to the wafer.” Additionally, CBP found that the design of the PCB allowed the wafer probe card to perform a variety of discrete functions, including: interpreting coded instructions sent by the tester, determining the timing and order of electrical signals to be sent to the wafer die, and managing data flow between the wafer probe card and the tester. Inasmuch as the manipulation and control of electrical signals is a necessary step to test the functional and operational integrity of wafer die, CBP concluded that the wafer probe cards in H192481 were accurately described as checking instruments, as defined by the CIT in Corning Glass Works, 586 F.2d at 822, and classified the merchandise in subheading 9030.82.00, HTSUS, as other instruments and apparatus for measuring or checking semiconductor wafers or devices.
In contrast with the wafer probe card classified under subheading 9030.82.00, HTSUS, in ruling letter HQ H192481, Qualcomm asserts that the instant wafer probe card, PIB, and load board do not perform specific operations in the testing and validation of wafer die and packaged die. To the contrary, Qualcomm states that the wafer probe card, PIB, and load board do not manipulate the electrical signals sent from the tester to the die under test. During testing of wafer die and packaged die, the Qualcomm ATE tester controls all electrical signals to be passed back and forth between the tester and the die under test. Similarly, after electrical signals are transmitted from the tester to the device under test, the returning electrical signals pass through the wafer probe card and PIB (or load board, in the case of packaged die testing) to the tester, where the tester analyzes the signals to validate the properties of the wafer die or packaged die. Consequently, Qualcomm asserts that because the wafer probe card, PIB, and load board serve as “passive” interfaces between the tester and device under test, the articles substantially differ from the merchandise at issue in H192481, and instead are properly classified as “parts and accessories” under subheading 9030.90.66, HTSUS.
Upon consideration of the physical description and function of the Qualcomm wafer probe card, PIB, and load board, CBP concludes that the instant merchandise substantially differs from the wafer probe card previously considered in ruling letter HQ H192481. Specifically, unlike the wafer probe card at issue in ruling letter HQ H192481, the Qualcomm wafer probe card, PIB, and load board do not perform specific operations in the testing and validation of the electrical properties of wafer die or packaged die. Consequently, ruling letter HQ H192481 is not dispositive as to the tariff classification of the instant merchandise.
Subheading 9030.90.66, HTSUS, provides, in relevant part, for “parts and accessories” of other instruments and apparatus for measuring or checking semiconductor wafers or devices. However, the phrase “parts and accessories” is not defined in the Nomenclature, and CBP has relied on guidance from the courts to inform its understanding of the scope of “parts and accessories.”
The courts have considered the nature of “parts” under the HTSUS and two distinct, though not inconsistent, tests have resulted. See Bauerhin Techs. Ltd. P’ship. v. United States (Bauerhin), 110 F. 3d 774 (Fed. Cir. 1997). The first, articulated in United States v. Willoughby Camera Stores, Inc. (Willoughby), 21 C.C.P.A. 322, 324 (1933), requires a determination of whether the imported item is an “integral, constituent, or component part, without which the article to which it is to be joined, could not function as such article.” Bauerhin, 110 F.3d at 778 (quoting Willoughby, 21 C.C.P.A. 322 at 324). The second, set forth in United States v. Pompeo (Pompeo), 43 C.C.P.A. 9, 14 (1955), states that an “imported item dedicated solely for use with another article is a ‘part’ of that article within the meaning of the HTSUS.” Id. at 779 (citing Pompeo, 43 C.C.P.A. 9 at 13). Under either line of cases, an imported item is not a part if it is “a separate and distinct commercial entity.” Bauherin, 110 F. 3d at 779.
More recently, the Court of International Trade (CIT) applied the Willoughby and Pompeo tests when it addressed the issue of whether two vase-shaped glass structures were classifiable as glassware in heading 7013, HTSUS, or as parts of lamps in heading 9405, HTSUS. Pomeroy Collection, Ltd., v. United States, 783 F. Supp. 2d 1257, No. 11-78 (Ct. Int’l Trade 2011). In applying Willoughby to the first article, the CIT ruled that “[w]hen imported, the claimed article is dedicated solely for use in such article, and, when applied to that use, the claimed part meets the Willoughby test.” Ibid, at 1261-1262. In Pomeroy, the court found that first article satisfied the Willoughby test because the hurricane lamp “clearly could not function without the first article in question” since the lamp relied upon the glass structure to hang upon. Id. at 1262. The court found that the second glass structure satisfied Pompeo because the evidence showed that the glass structure contained the flame and enabled the candles to remain lit and to prevent open flames. Thus, the court also found that the second article at issue also satisfied the Willoughby precedent, because “when applied to that use,” the lamp could not function without the glass structures. Id. In other words, to satisfy the Pompeo test, two prongs must be satisfied: (1) the article must be solely dedicated for use with the product it claimed to be a part of and, (2) when applied to that use, the article cannot function without the article at issue.
With respect to the Qualcomm wafer probe card, PIB, and load board, CBP finds that the technical descriptions of the instant merchandise indicate that the articles are specially designed and fabricated to be used with Qualcomm testers to validate IC die during different stages of the semiconductor manufacturing process. During testing of wafer die and packaged die, the Qualcomm ATE tester controls all electrical signals to be passed back and forth between the tester and the die under test. The wafer probe card, PIB, and load board act as an interface between the tester and the die and serve as a conduit for electrical signals to be passed between the tester and the die. Without the wafer probe card, PIB, or load board to serve as an interface between the tester and the device under test, the tester cannot transmit electric signals to and from the wafer die or packaged die. Consequently, because the Qualcomm wafer probe card, PIB, and load board are dedicated for use solely with an ATE tester unit and are necessary for the transmission of electronic signals to wafer and packaged die during testing and validation operations, CBP finds that the articles are properly described as “parts” of instruments and apparatus for measuring or checking semiconductor wafers or devices under the Willoughby and Pompeo tests. Accordingly, the Qualcomm wafer probe card, PIB, and load board are classifiable under subheading 9030.90.66, HTSUS, as parts of other instruments and apparatus for measuring or checking semiconductor wafers or devices.
HOLDING:
By application of GRIs 1 and 6, the Qualcomm wafer probe card, PIB, and load board are classified under heading 9030, HTSUS, specifically in subheading 9030.90.66, 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: Parts and accessories: Other: Printed circuit assemblies: Of instruments and apparatus of subheading 9030.40 or 9030.82.” The 2016 column one, general rate of duty for merchandise of subheading 9030.90.66, HTSUS, is free.
Duty rates are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the Internet at http://www.usitc.gov/.
A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Ieva K. O’Rourke, Chief
Tariff Classification and Marking Branch