HQ 959109

October 5, 1998

**CLA-2 RR:CR:GC** 959109 RFA

**CATEGORY:** Classification

**TARIFF NO.:** 9011.20.80

Port Director

U.S. Customs Service

10 Causeway Street

Room 603

Boston, MA 02222-1059

**RE:** Protest 0401-1996-100112; Compound Optical Microscopes Used for
Semiconductor Inspection; Measuring or Checking Instruments; Headings
9011 and 9031; EN 90.11; [Carl Zeiss, Inc. v. United
States]{.underline}, CIT Slip Op. 98-86; HQs 954662 and 956638

Dear Port Director:

The following is our decision regarding Protest 0401-1996-100112, which
concerns the classification of Leica compound optical microscopes used
for semiconductor inspection under the Harmonized Tariff Schedule of the
United States (HTSUS).

**FACTS:**

The subject merchandise are the Leica Ergoplan \[now sold as "INM200\"\]
and Polycon \[now sold as "INM20-C"\] binocular microscopes used for
inspecting photomasks and semiconductor wafers. They were imported
without measurement inspection stations and without cameras. According
to information provided by counsel, the subject merchandise was entered
in the following different configurations: a standard configuration
containing the microscope, stage, and electronics control box;
microscopes by themselves; and microscopes which were made for original
equipment manufacturers (OEM).

The Ergoplan and the Polycon are compound optical microscopes designed
for examining very small objects such as circuitry photomasks and
semiconductor wafers. The microscopes do not measure a quantity, nor do
they check against a standard. Both microscopes have a horizontal
distance between the optical axis and the C-shape axis and C-shape
microscope stand of 8 inches or more. The C-shape design accommodates
the dimensions of the semiconductor stage.

The Ergoplan is equipped with a camera port for video projection and TV
mounting if desired by the end-user. The Polycon is specially designed
to use the confocal imaging method, which is designed for maximum speed
and accuracy in an industrial setting. After importation, the Polycon
can function "as is" or can be incorporated into larger inspection or
measurement systems.

Some of the entries of microscopes were equipped with large scanning
stages for semiconductor wafers and masks. The stages allow for the
complete rotation of multiple wafers or photomasks on "wafer rotators"
or "holders" which fit onto the stage. Rotation is accomplished either
by means of the extended rod protruding from the wafer rotator or is
accomplished automatically by computerized controls. The stage contains
an opening which can be closed by means of a lid. The lid is used to
close the opening when a wafer is being inspected to create an opaque
stage because the light must come from above. When photomasks or
reticles are being inspected, the opening is left open so that light
from below can be used.

Some of the microscopes are joined to the electronics control box and
outfitted with mask or wafer holders appropriate to the needs of the
particular customer. The control box controls the rotation of the
scanning stage (unless the operator desires to do so manually by other
means provided), and controls the apertures and the amount of light by
means of various controls. The Ergoplan can be used as a stand-alone
unit for photomask or wafer inspection, or it can be upgraded to act as
a high performance, fully automatic system, labeled as the "MIS-200\".

The merchandise was entered under subheading 9031.40.60, HTSUS, as
measuring and checking instruments for inspecting semiconductor wafers
and devices. The entries were liquidated on December 8, 1995, under
subheading 9011.20.80, HTSUS, as compound optical microscopes. The
protest was timely filed on March 6, 1996.

The 1995 subheadings under consideration are:

> 9011: Compound optical microscopes, including those for
> photomicrography, cinemicrography or microprojection:
>
> 9011.20: Other microscopes, for photo-micrography, cinemicrography or
> microprojection:
>
> 9011.20.40: Provided with a means for photographing the image . . .
>
> Goods classifiable under this provision have a column one, general
> rate of 4.7 percent ad valorem.
>
> 9011.20.80: Other. . . .
>
> Goods classifiable under this provision have a column one, general
> rate of duty of 8.6 percent ad valorem.
>
> 9031.40.60: Measuring or checking instruments, appliances and
> machines, not specified or included elsewhere in this chapter. . . :
> \[o\]ther optical instruments and appliances: \[o\]ther: \[f\]or
> inspecting photomasks used to manufacture semiconductor devices; for
> inspecting semiconductor wafers and devices . . . .
>
> Goods classifiable under this provision have a column one, general
> rate of duty of free.

**ISSUE:**

Whether compound optical microscopes used for semiconductor inspection
are classifiable as compound optical microscopes of heading 9011, or as
measuring or checking instruments of heading 9031, under the HTSUS?

**LAW AND ANALYSIS:**

Classification of merchandise under the HTSUS is in accordance with the
General Rules of Interpretation (GRI\'s). GRI 1 provides that
classification shall be determined according to the terms of the
headings and any relative section or chapter notes.

In HQ 954662, dated December 7, 1994, Customs determined whether a
surgical microscope met the terms of a compound optical microscope of
heading 9011, or was classifiable as a surgical instrument under heading
9018. In making its determination, Customs consulted the Harmonized
Commodity Description and Coding System Explanatory Notes (ENs) which
constitutes the official interpretation of the HTSUS. While not legally
binding nor dispositive, the ENs provide a commentary on the scope of
each heading of the HTSUS and are generally indicative of the proper
interpretation of these headings. [See]{.underline} T.D. 89-80, 54 FR
35127, 35128 (August 23, 1989). In part, EN 90.11, pages 1475‑1476,
states that:

> . . . the compound optical microscope of this heading has a second
> stage of magnification for the observation of an already magnified
> image of the object.

A compound optical microscope normally comprises:

> \(I\) An optical system consisting essentially of an objective
> designed to produce a magnified image of the object, and an eyepiece
> which further magnifies the observed image. The optical system usually
> also incorporates provision for illuminating the object from below (by
> means of a mirror illuminated by an external or an integral light
> source), and a set of condenser lenses which direct the beam of light
> from the mirror on to the object.
>
> \(II\) A specimen stage, one or two eyepiece‑holder tubes (according
> to whether the microscope is the monocular or binocular type), and an
> objective‑holder (generally revolving).
>
> . . . This heading covers microscopes as used by amateurs, teachers,
> etc., and those for industrial use or for research laboratories. . . .

After examining this definition, Customs determined that the surgical
microscope met the terms of a compound optical microscope and was
therefore precluded from classification under heading 9018, as a
surgical instrument. [See]{.underline} HQs 956638 and 954855, dated
December 7, 1994, for similar holdings on the classification of compound
optical microscopes that were specialized for medical/surgical uses.

In [Carl Zeiss, Inc. v. United States]{.underline}, Slip Op. 98-86 (CIT
June 23, 1998) \[hereinafter referred to as [Zeiss]{.underline}\], the
Court of International Trade (CIT) determined the classification of
compound optical microscopes which are principally used as medical or
surgical instruments or appliances. The CIT noted that the microscopes
had special design features that make them particularly useful for
surgery, such as:

> . . . magnification levels that are considerably lower than those of
> microscopes used for laboratory or industrial purposes, specially
> configured stands and movement mechanisms designed to aid hands-free
> use in surgery, built in co-axial sources of illumination (as opposed
> to the separate light sources usually placed underneath the object in
> microscopes used for laboratory or industrial purposes), and a notable
> difference in price in which these importations are approximately 10
> times more costly than compound optical microscopes used for
> non-surgical purposes.

The plaintiff in [Zeiss]{.underline} argued that although the surgical
microscopes have the main characteristics of compound optical
microscopes, they are not within the common meaning of that item because
they have a distinct commercial identity. The CIT stated that it can
accept this proposition "without undermining the fact that these
microscopes are still accurately described for tariff purposes by the
term 'compound optical microscopes.'" [See]{.underline}
[Zeiss]{.underline}. The court recognized that the ENs for the heading
covering surgical instruments specifically excluded compound optical
microscopes. In ruling in favor of the government's classification under
heading 9011, the CIT concluded that "\[i\]n the absence of any
indication in the legislative history of the \[HTSUS\] that distinction
were being made between surgical microscopes and compound optical
microscopes, the court has to derive its understanding of the terms from
the unambiguous meaning of the language used in the Headings."
[See]{.underline} [Zeiss]{.underline}.

The protestant states that [Zeiss]{.underline} and the above rulings do
not apply because there is no reason to apply the principle of relative
specificity. We disagree. Because heading 9031 provides for:
"\[m\]easuring or checking instruments, appliances and machines, **not
specified or included elsewhere in this chapter** . . ." (emphasis
added), Customs must determine whether another heading within chapter 90
more accurately describes the goods before classifying the goods under
heading 9031. Furthermore, the EN to heading 9031 specifically excludes
microscopes of heading 9011 or 9012. Like the plaintiff in
[Zeiss]{.underline} the protestant has provided information to support
their claim that their microscopes have special design features that
make them particularly useful for viewing semiconductor wafers.

We find that the microscopes do not meet the terms of heading 9031
because in their condition as imported, they cannot perform any
measuring or checking function. The addition of the electronics control
box merely allows the user to automatically adjust the stage and the
optics as opposed to adjusting it manually by use of a knob. The control
box does not change the function of the Ergoplan or the Polycon which is
to allow the user to view very small objects close-up. Based upon the
CIT decision in [Zeiss]{.underline}, we find that the subject
microscopes meets the definition of compound optical microscopes for
heading 9011, HTSUS, because they have a second stage of magnification
for the observation of an already magnified image of an object. Because
the merchandise are compound optical microscopes under heading 9011,
HTSUS, classification under heading 9031, HTSUS, is precluded.

Subsequent to the importation of the merchandise, the U.S. entered into
the Information Technology Agreement (ITA), which went into effect on
July 1, 1997 \[[see]{.underline} 62 FR 35909 (July 2, 1997)\]. In
notifying the other signatories, the U.S. stated that it would classify
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. The protestant states that the C-shape stands and the
stages qualify as "equipment specifically designed for the handling and
transport of semiconductor wafers". We find that the stands and the
stages are no different than the surgical microscopes' specially
configured stands and movement mechanisms designed for hands-free use in
surgery. These design features do not change the fact that the
microscopes, in their condition as imported, "are still accurately
described for tariff purposes by the term 'compound optical
microscopes.'" [See]{.underline} [Zeiss]{.underline}.

The only remaining issue is whether the microscopes are provided with
the means for photographing the image. Customs has consistently
determined that microscopes capable of photomicrography, but which were
imported without the device for photographing an image, cannot be
considered to be \"provided with a means for photographing the image\".
See HQ 956638, dated December 7, 1994; HQ 954640, dated October 25,
1994; HQ 088121, dated February 26, 1991; HQ 085754, dated December 26,
1989. The merchandise was imported without the means for photographing
the images. Therefore, we find that the microscopes are to be classified
as compound optical microscopes, provided without the means for
photographing the image, under subheading 9011.20.80, HTSUS.

**HOLDING:**

The microscopes are classifiable under subheading 9011.20.80, HTSUS,
which provides for: "\[c\]ompound optical microscopes, including those
for photomicrography, cinemicro-graphy or microprojection: \[o\]ther
microscopes, for photo-micrography, cinemicrography or microprojection:
\[o\]ther. . . ." Goods classifiable under this provision have a column
one, general rate of duty of 8.6 percent ad valorem.

The protest should be **[DENIED]{.underline}**. In accordance with
Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4,
1993, Subject: Revised Protest Directive, this decision, together with
the Customs Form 19, should be mailed by your office to the protestant
no later than 60 days from the date of this letter. Any reliquidation of
the entry in accordance with the decision must be accomplished prior to
mailing of the decision. Sixty days from the date of the decision the
Office of Regulations and Rulings will take steps to make the decision
available to Customs personnel via the Customs Rulings Module in ACS and
the public via the Diskette Subscription Service, Freedom of Information
Act and other public access channels.

Sincerely,

John Durant, Director

Commercial Rulings Division