HQ 954369: 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

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            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