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HQ 954369



October 4, 1993

CLA-2 CO:R:C:M 954369 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9027.50.40; 8424.90.40

District Director
U.S. Customs Service
555 Battery Street
San Francisco, CA 94111

RE: Protest No. 2809-93-100628; Ellipsometer; Chapter 90, Note 3; Section XVI, Note 4; HQ 955053; NY's 853463 (Revoked), 884914, and 887144; 9031.40.00

Dear District Director:

The following is our decision regarding the request for further review of Protest No. 2809-93-100628 concerning your action in classifying and assessing duty on an ellipsometer under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise consists of an ellipsometer (model no. ES4G- OMA). It is comprised of a spectroscopic ellipsometer with a spectral light range of 210nm to 2500nm, a polarizer, an analyzer consisting of a prism and a stepper motor, a goniometer, a sample stage, optical fiber, a spectrometer, a detector, various electronic devices, a computer, and corresponding software. It is our understanding that the computer will be sourced in the U.S. The subject ellipsometer is an instrument for measuring the plane of polarization of a ray of light as it is rotated in passing through an optically active substance.

The merchandise was entered under subheading 9027.50.40, HTSUS, as an other electrical instrument using optical radiations for physical analysis.The entry was liquidated on January 4, 1993, under subheading 9031.40.00, as an other optical measuring instrument, not specified or included elsewhere in chapter 90, HTSUS. The protest was timely filed on April 2, 1993.

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 is classifiable under subheading 9027.50.40, HTSUS, as an other electrical instrument using optical radiations for physical analysis, or under subheading 9031.40.00, HTSUS, as an other optical measuring instrument, not specified or included elsewhere in chapter 90, HTSUS.

Whether the corresponding software for the ellipsometer 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 the ellipsometer is comprised of several devices connected together, we must determine whether it is a functional unit. 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 the ellipsometer, under section XVI, note 4, HTSUS, constitutes a functional unit. We must now determine the proper classification of the merchandise in the heading appropriate to its function.

Your office cites NY 853463, dated July 6, 1990, as precedent for the classification of the subject ellipsometer under subheading 9031.40.00, HTSUS. In that ruling, a coating thickness meter, which utilized light emitting diodes (LED's) to measure the thickness of magnetic coating applied to the plastic material of magnetic data discs, was held to be classifiable under subheading 9031.40.00, HTSUS.

However, as a result of HQ 955053, of this date, a copy of which is enclosed, NY 853463 has been revoked and the merchandise in that ruling is now classifiable under subheading 9027.50.40, HTSUS. In HQ 955053, similar ellipsometers were also held to be classifiable under subheading 9027.50.40, HTSUS. Also, we note that in NY 884914, dated April 27, 1993, and NY 887144, dated June 29, 1993, similar models of ellipsometers were held to be classifiable under subheading 9027.50.40, HTSUS.

Therefore, based upon the above cited rulings, especially HQ 955053, the subject ellipsometer is classifiable under subheading 9027.50.40, HTSUS.

The corresponding software is classifiable under subheading 8424.90.40, HTSUS.

HOLDING:

The ellipsometer is classifiable under subheading 9027.50.40, HTSUS, as an other electrical instrument using optical radiations for physical analysis. With regard to the classification of the ellipsometer, the protest should be granted.

The corresponding software is classifiable under subheading 8524.90.40, HTSUS, as other recorded media for sound or other similarly recorded phenomena. With regard to the classification of the software, because reclassification of the merchandise as indicated above will result in a lower rate of duty than claimed, you are instructed to grant the protest.

A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division

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