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HQ 962444




August 30, 2000

CLA-2 RR:CR:GC 962444 GOB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9022.19.00

Port Director
U.S. Customs Service
110 S. 4th Street
Minneapolis, MN 55401

RE: Internal Advice # 32/98; Cameca SX100 Electron Probe Micro Analyzer

Dear Sir:

This letter is in response to your memorandum of November 6, 1998 (APP-7-10:MN:PD BJB), forwarding a request for internal advice initiated by a letter of August 1, 1997, submitted by counsel on behalf of Cameca Instruments, Inc. (“Cameca”). We regret the delay in responding.

The internal advice request involves a classification and a value issue. This letter addresses the classification issue. Your request and the materials pertaining to the value issue have been forwarded to the Value Branch of this office which will respond to you separately.

FACTS:

The Cameca SX100 Electron Probe Micro Analyzer (“EPMA”) consists of the following: electron accelerator, electron detector, spectrometers, optical microscope, and computer.

The EPMA is described as follows:

A focused, energetic electron beam induces x-ray emission in a materials sample. X-rays are focused by a diffracting crystal, whose position and angle relative to the x-ray path determine which element is detected. Then, x-rays are counted over a period of time (say 30 seconds) by a special counter. The number of x-rays detected over a fixed period of time (“intensity”) is compared to the intensity, under the same conditions, detected on a known “standard.” Intensity is directly related to concentration of the element in the sample, so comparing an "unknown" sample's intensity to a "known'’ sample intensity give[s] a first order computation of an element’s concentration. Thus, using physical phenomena, a chemical analysis is produced as a final result.

The other function of the EPMA is to provide imaging of a sample. As mentioned in the above section, a finely focused electron beam is generated in the column. This beam can be scanned (“rastered”), once again, much like the rastered electrons in a TV picture tube. However, the beam can be scanned very slowly to very fast (TV rate, in fact). And the rastered area can be of various sizes and shapes. Using the same x-ray detection system described [above] , the positions of the x-rays emitted from the sample, and thus the elements themselves can be tracked. The result is a 2-dimensional image representing x-ray maps of the sample’s surface, which can be used to determine how the elements are distributed in the sample. Using another detection system, electrons emitted from the sample can be tracked or imaged. This is classic “imaging,” where only surface topography or basic, average atomic number information is gained.

Further, Cameca’s product literature provides as follows:

Applications of the EPMA technique may be divided into three groups:

To accurately non-destructively quantify the elemental concentrations of a very small volume (typically a sphere of 2 um) in situ on a material surface, with a routine sensitivity of 0.01 element weight percent (100 ppm).

To map and quantify the distributions of chemical phases and elements precisely on the surface of the material, typically 20 mm by 20 mm but up to 75 mm x 50 mm, or along a line, at practical speeds, and to present the data in a useful format.

To produce high resolution (6nm) topographical images of the specimen surface and carry out rapid qualitative analysis of selected points.

These results are obtained by the detection and determination of secondary electron, backscattered electron, and X-ray emission excited by primary high energy electrons striking the specimen surface at the desired points.

Basically, the Cameca Model SX100, has a large, high-vacuum chamber in which it accelerates electrons to high speeds and then slams them into a very precisely chosen and tiny target area on the surface of a solid. This slamming causes both X-rays and electrons to fly out. Analysis of the X-rays emitted by both wavelength and energy dispersive spectrometers, and to a lesser extent, of the electrons emitted, enable "nearly the entire periodic table of elements" to be "detected and quantified" as they exist in the microscopic target area.

The Encyclopedia Britannica states:

Electron-probe microanalyzers have been developed (since 1947) to carry out nondestructive elemental analysis at resolutions approaching those of the transmission electron microscope. This is done by measuring the energy and intensity of the characteristic X-rays emitted by a specimen when a focused electron beam impinges on it X-ray microprobe analysis has proven to be so valuable that a majority of scanning electron microscopes, as well as many transmission electron microscopes, are now equipped with X-ray spectrometers as accessories. The technique has found wide application in mineralogy, metallurgy, and solid-state science, as well as in the clinical and life sciences.

ISSUE:

What is the tariff classification of the Cameca SX100 Electron Probe Micro Analyzer – is it provided for in heading 9022, HTSUS, or in heading 9027, HTSUS?

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI’s”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI’s may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (“EN’s”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.

The HTSUS provisions under consideration are as follows:

Apparatus based on the use of X-rays or of alpha, beta or gamma radiations, whether or not for medical, surgical, dental, or veterinary uses, including radiography or radiotherapy apparatus : Apparatus based on the use of X-rays whether or not for medical, surgical, dental, or veterinary uses, including radiography or radiotherapy apparatus: For other uses
Instruments and apparatus for physical or chemical analysis (for example, polarimeters, refractometers, spectrometers, gas or smoke analysis apparatus); : Other instruments and apparatus:
Other:
Electrical[.]

EN 90.22 (I) provides, in pertinent part, as follows:

This heading also covers:

Special apparatus (X-ray diffraction and X-ray spectrometry equipment) used for the examination of the crystalline structure as well as the chemical composition of materials;

EN 90.27 provides that “[t]he heading also excludes: (e) X-ray, etc., apparatus (heading 90.22).”

The McGraw-Hill Encyclopedia states that “[i]n x-ray spectrometry the irradiation of a sample by high-energy electrons, protons, or photons ionizes some of the atoms, which then emit characteristic x-rays ”

The Encyclopedia Britannica states:

X-ray spectrometry provides a method of rapid, non-destructive chemical analysis which in many instances parallels optical emission spectrography. In brief, a beam of intense primary X-rays from a permanently installed, sealed-off tube is directed upon any specimen, gas, liquid, solution or solid. This primary radiation excites in the specimen secondary fluorescent X-rays whose wave lengths are characteristic for each chemical element. This radiation is spread out into a spectrum and analyzed by means of a crystal spectrometer

Commercial equipment is available for point-by-point X-ray spectrometric analysis, that is, chemical analysis of very small individual areas such as the grains in aggregates which constitute the usual texture of metals and alloys. Extremely fine electron beams collimated by magnetic lenses, as in electron microscopes, generate primary characteristic rays of all the chemical elements in each minute area upon which the beam impinges, identification being made with a sensitive crystal spectrometer.

Heading 9022 provides, in pertinent part, for “apparatus based on the use of X-rays ” As Cameca states with respect to the EPMA, “ a focused, energetic electron beam induces X-ray emission in a materials sample.” We believe that the EPMA is an apparatus based on the use of X-rays, i.e., while the EPMA does not take an X-ray examination directly, it induces X-ray emission from the sample, and analyzes the results..

After a careful consideration of this issue, we determine that the EPMA is provided for in heading 9022, HTSUS, as “Apparatus based on the use of X-rays ” and is classified in subheading 9022.19.00, HTSUS, as “For other uses.” Our determination is based upon the heading language of 9022 and the language of EN’s 90.22 and 90.27, as excerpted above. We note that we believe that the EPMA is also described in heading 9027 as “Instruments and apparatus for physical or chemical analysis ” The exclusion in EN 90.27, excerpted above, is an important consideration in our determination.

Customs has classified similar merchandise, described as an electron microprobe (including wavelength x-rat dispersive spectrometers), in subheading 9022.10.00, HTSUS. See NY 890401 dated October 15, 1993.

HOLDING:

The EPMA is provided for in heading 9022, HTSUS, as “Apparatus based on the use of X-rays ” and is classified in subheading 9022.19.00, HTSUS, as “For other uses.”

This decision should be mailed to the internal advice requester no later than 60 days from the date of this letter. Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division

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