# HQ 964811

> May 1, 2002

# CLA-2 RR:CR:GC DBS

> **CATEGORY:** Classification
>
> **TARIFF NO.:** 6909.11.40; 6909.12.00
>
> Port Director
>
> U.S. Customs Service
>
> 555 Battery Street
>
> San Francisco, CA 94111
>
> **RE:** Protest 2809-00-100735; blank ceramic substrates.
>
> Dear Port Director:

This is our decision on Protest 2809-00-100735 filed against your
classification under the Harmonized Tariff Schedule of the United States
(HTSUS), of two types of blank ceramic substrates. The entries were
liquidated on August 11, 2000, and the protest timely filed on October
17, 2000.

> **FACTS:**

The samples submitted are two kinds of blank ceramic substrates. One
substrate is composed of 99.6 percent alumina, and is used as a base
upon which integrated circuits are manufactured ("IC substrates"). The
other substrate is produced from alumina combined with titanium carbide
and is used as a base upon which are manufactured magnetic head sliders
for disk drives for automatic data processing machines ("MH
substrates"). The substrates are imported blank, without holes, lines or
any identifying feature that would dedicate them to any specific use.
After importation the substrates are further processed to make then
ready for their intended use.

According to the protestant, Kyocera Industrial Ceramics Corporation
(KICC), the alumina is milled and dried to produce a powder. The alumina
powder is pressed under extreme pressure and heat in a hot press to form
the rectangle of substrate material. The surface is

machined, lapped and polished to the micron-level thickness and
angstrom-level surface specified by the customer.

The protestant asserts that all of the characteristics of the substrates
are determined by the processing which takes place prior to importation.
KICC states that, at the time of importation, the substrates are
dedicated to their respective uses as IC substrates and MH substrates.

The protestant contends that classification of these substrates should
be in subheading 8542.90, HTSUS, as parts of electronic integrated
circuits and microassemblies. Alternatively, protestant contends the IC
substrates should be classified in subheading 6909.11.40, HTSUS, as
ceramic wares for technical uses of porcelain or china, and the MH
substrates in subheading 6909.12.00, HTSUS, as ceramic wares for
technical uses having a hardness equivalent to 9 or more on the Mohs
scale. You classified both types of substrates in subheading 6914.90.80,
HTSUS, the provision for other ceramic articles.

Samples were submitted to the Customs Laboratory for analysis. The
laboratory reports (#NO 200211, dated March 5, 2002 and #NO20011397S,
dated April 16, 2002) both state that the samples meet the requirements
of a ceramic set forth in Chapter 69, Additional U.S. note 1, HTSUS, and
that the hardness of both types of ceramic is equivalent to more than 9
on the Mohs scale. Moreover, the IC substrate sample also meets the
requirements for porcelain.

**ISSUE:**

Whether the blank ceramic substrates constitute parts of electronic
integrated circuits, classifiable in subheading 8542.90, HTSUS, ceramic
wares for technical use, in subheadings 6909.11 and 6909.12, HTSUS, or
whether they fall into the basket provision, heading 6914, HTSUS, which
provides for other ceramic articles.

**LAW AND ANALYSIS:**

Classification under the HTSUS is made in accordance with the General
Rules of Interpretation (GRIs). GRI 1 provides that articles are to be
classified by the terms of the headings and relative Section and Chapter
Notes. For an article to be classified in a particular heading, the
heading must describe the article, and not be excluded therefrom by any
legal note. In the event that goods cannot be classified solely on the
basis of GRI 1, and if the headings and legal notes do not otherwise
require, the remaining GRIs may then be applied.

In understanding the language of the HTSUS, the Harmonized Commodity
Description and Coding System Explanatory Notes (ENs) may be utilized.
ENs, though not dispositive or legally binding, provide commentary on
the scope of each heading of the HTSUS, and are the official
interpretation of the Harmonized System at the international level.
Customs believes the ENs should always be consulted. *See* T.D. 89-80,
54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

6909. Ceramic wares for laboratory, chemical or other technical uses;
      ceramic troughs, tubs and similar receptacles of a kind used in
      agriculture; ceramic pots, jars and similar articles of a kind
      used for the conveyance or packing of goods:

> Ceramic wares for laboratory, chemical or technical uses:

11. Of porcelain or china:

> 6909.11.40 Other
>
> \* \* \*

6909.12.00 Articles having a hardness equivalent to 9 or more on the
Mohs scale

\* \* \*

6914. Other ceramic articles

      90. Other:

          80. Other

\* \* \*

**8542** Electronic integrated circuits and microassemblies; parts
therof:

> 8542.90.00 Parts

Additional U.S. Rule of Interpretation 1(c), HTSUS, states: "A provision
for parts of an article covers products solely or principally used as a
part of such articles but a provision for "parts" or "parts and
accessories" shall not prevail over a specific provision for such part
or accessory."

First, we examine Protestant's claim that both types of substrates are
parts of the goods of heading 8542, HTSUS. Note 5(b) to Chapter 85,
HTSUS, provides the requirements for "electronic integrated circuits and
microassemblies" of heading 8542, HTSUS. As described in the Note,
monolitihic integrated circuits, hybrid integrated circuits and
microassemblies all are constructed of discrete components, which
consist of indivisible circuit elements (e.g., diodes, transistors,
resistors, capacitators and interconnections). None of these circuit
elements is present on the substrates at issue. Thus, we cannot
determine whether or not the ceramics will ever meet the requirements
set forth in the Note.

An article may be classified as a part of another article when, in its
imported condition, it has been so far advanced so as to be dedicated to
and commercially fit for use with that article and incapable of being
made into more than one article or class of articles. See *Avin
Industrial Products Co. v. United States*, 72 Cust. Ct. 43, C.D. 4503,
376 F. Supp. 879, reh. denied, 72 Cust. Ct. 147, C.D. 4522 (1974). *See
also* *Haraeus-Amersil, Inc. v. United States,* 6*40* F. Supp. 1331 (CIT
1986) (so advanced that nothing remained to be done except cut precious
metal contact tape apart); *EM Chemicals v. United States,* 728 F. Supp.
723 (CIT 1989) (liquid crystal used in liquid crystal displays imported
in advanced manufactured state such that the product as imported is
ready to be a part of the LCD by being sandwiched between two 'plates'),
and *Ludvig Svensson,* *Inc. v. United States,* 62 F. Supp. 2d 1171 (CIT
1999), *infra*.

### Whether an item made into multiple parts after importation is classifiable as part of other articles requires the determination of whether the article 1) is dedicated solely or principally for use in those articles and is without substantial other independent commercial uses and 2) if the item can be made into multiple parts, the item must identify and fix with certainty the individual parts to be made from them. See Baxter Healthcare Corp. of Puerto Rico v. United States, 182 F.3d 1333 (CAFC 1999) (hereinafter Baxter). In Baxter, rolls of Oxyphan (used for making membrane oxygenators) failed the second part of the test because the individual parts cannot be discerned from the roll. The roll nowhere marked or otherwise identified the individual parts to be made from it. But see Ludvig Svensson, 62 F. Supp. 2d 171 (holding environmental screens were in an advanced state of manufacture, i.e., no longer materials, because the special properties of the screens for used as greenhouse roofs are fixed and not altered by minimal post-importation processing). 

### 

As the instant articles are eventually cut into multiple parts, the
protestant relies on *Benteler Indus., Inc. v. U.S.,* 840 F. Supp. 912
(CIT 1993), for the proposition that the laser cutting process used on
the substrates negates the need for markings. In *Benteler,*
measurements for cutting the steel tubing sections used in car doors
were programmed into the laser-cutting machine. We find this argument
unpersuasive. In that case, the court held that an indiscernible number
of articles could not be made from the steel tubing sections upon entry.
*See id* at 918. The number of beams to be cut from the sections was
known prior to importation, and the sections were color-coded and
number-coded, as the design of each section was specific to a particular
door type and door structure. *See id.* That is not the case here. The
number of individual substrates, and thus integrated circuits, to be
made on the blank ceramic substrates is not discernible upon
importation. The blanks are sold to "laser houses," where various
integrated circuits are fabricated according to customer specifications.

Moreover, the premise that small articles imported in one piece should
be classified as if already cut apart when all that remains to be done
is the cutting, *see* *United States v. Buss*, 5 Ct. Cust. App. 110,
T.D. 34138 (1914), is not relevant here because what remains to be done
to the substrates is far more than mere cutting. The "laser houses"
first must fabricate integrated circuits, which involves a series of
etching and implantation steps on the whole piece of ceramic before it
can be cut into individual parts. The MH substrates, which are used in
the manufacture of read/write heads, or "sliders," for hard disk drives,
undergo a series of similar steps described in the facts above. These
steps exceed the minimal processes performed on the screens in *Ludvig
Svennson*, *supra.*

Without the post-importation processing, or any other identifying
characteristic, the ceramic pieces, like the rolls of Oxyphan in
*Baxter,* *supra,* cannot be distinguished at importation as parts of
electronic integrated circuits or microassemblies. The identity of the
substrates as parts of electronic integrated circuits or microassemblies
is not fixed with certainty because the substrates are blank; there are
no circuit elements. Accordingly, neither type of blank ceramic
substrate are classifiable under subheading 8542.90, HTSUS.

Protestant claims that because nematic liquid crystals were classified
as parts of indicator panels rather than as chemicals in *E.M.
Chemicals, supra,* blank ceramic substrates should be classified as
parts of electronic integrated circuits and microassemblies. We believe
this application of *E.M. Chemicals* exceeds the scope of the court's
decision because the goods and legal provisions are not analogous.

###  

### Additionally, the protestant also raises the fact that in HQ 088157, dated July 2, 1992, we classified certain ceramic pieces in subheading 8542.90, HTSUS, as parts of electronic integrated circuits. The articles classified in that ruling were ceramic "piece-parts." They are the packaging or housing for the electronic integrated circuits, not the base upon which the circuits are built, as here. The post importation processing was minor, as they required only sealing and a die-attached gold-dot moly-manganese. Further, that ruling determined whether the piece-parts were parts or electrical insulators. Therefore, the ruling does not provide any guidance for classifying the goods at issue. 

We next examine heading 6909 to determine if it describes the imported
goods. At importation, the substrates are clearly identifiable as
ceramic articles. Relevant technical sources define a substrate as
follows: "Base material upon which integrated circuits are built." Alan
Freedman's The Computer Glossary, 8^th^ edition. "The inactive
supporting material used in a manufacturing process ...In tapes and
disks, it is the material on which the magnetic particles are fused."
The Microsoft Press Computer Dictionary, 3d edition. "The underlying
material on which a microelectronic device is built. Such material may
be electrically active, such as silicon, or passive, such as alumina
ceramic." Intersil's Lexicon on Semiconductor Terms
[http://rel.semi.harris.com/docs/
lexicon./S.html](http://rel.semi.harris.com/docs/lexicon./S.html),
*visited on*, March 8, 2002.

Heading 6909, HTSUS, covers in pertinent part, ceramic wares for \...
technical uses. Additional U.S. Note 5(a) to Chapter 69, HTSUS, provides
in pertinent part as follows:

\(5\) For the purposes of heading 6909 through 6914:

> \(a\) The terms "[porcelain]{.underline}," "[china]{.underline}" and
> "*chinaware*" embrace ceramic ware (other than stoneware), whether or
> not glazed or decorated, having a fired white body (unless
> artificially covered) which will not absorb more than 0.5 percent of
> its weight of water and is translucent in thicknesses of several
> millimeters.

\[Emphasis in original.\]

As stated above, the Customs Laboratory report determined that a sample
of the IC substrate composed of 99.6% alumina met the definition of
porcelain in Additional U.S. Note 5(a) to Chapter 69.

In HQ 964556, dated March 12, 2001, we classified blank substrates
composed of 96% and 99.6% alumina used as the supporting material upon
which integrated and other electrical circuits are fabricated or to
which integrated circuits are attached in subheading 6909.11.40, HTSUS.
The protestant submits that the IC substrates are sold to "laser houses"
to produce integrated circuits, and that they have technical properties,
such as surface smoothness, low thermal conductivity, dielectric
properties and the absence of water absorption, making them suitable for
such use. We find the instant IC substrates to be substantially similar
to the merchandise classified in HQ 964556. Accordingly, the instant IC
substrate is classifiable in subheading 6909.11.40, HTSUS.

Subheading EN to subheading 6909.12 provides:

> This subheading covers high-performance ceramic articles. These
> articles are composed of a crystalline ceramic matrix (e.g. of
> alumina, silicon carbide, zirconia, or nitrides of silicon, boron or
> aluminium, or of combinations thereof): whiskers or fibres of
> reinforcing material (e.g. of metal or graphite) may also be dispersed
> in the matrix to form a composite ceramic material.
>
> These articles are characterized by a matrix which has a very low
> porosity and in which the grain size is very small; by high resistance
> to wear, corrosion, fatigue and thermal shock; by high-temperature
> strength; and by strength-to-weight ratios comparable to or better
> than those of steel.

They are often used in place of steel or other metal parts in mechanical
applications requiring close dimensional tolerances (e.g. engine
turbocharger rotors, rolling contact bearings and machine tools).

> The Mohs scale mentioned in this subheading rates a material by its
> ability to scratch the surface of the material below it on the scale.
> Materials are rated from 1 (for talc) to 10 (for diamond). Most of the
> high-performance ceramic materials fall near the top of the scale.
> Silicon carbide and aluminium oxide, both of which are used in
> high-performance ceramics, fall at 9 or above on the Mohs scale....

The protestant submits that the MH substrates have technical properties
for use in ADP machines such as surface smoothness, low thermal
conductivity, dielectric properties and the absence of water absorption
making them suitable for such use. The substrates fall within the
purview of high-performance ceramics as they are composite ceramics
composed in part of aluminum oxide, are machined to exacting dimensional
tolerances for use in the computer industry, and have a hardness
equivalent to more than 9 on the Mohs scale.

We are satisfied that these substrates meet the subheading EN
description. Furthermore, according to U.S. Additional Rule of
Interpretation 1(c), HTSUS, a specific provision for a good prevails
over a provision for parts. Even if these ceramic substrates were
identifiable as parts of goods of heading 8542, HTSUS, they are
specifically provided for as ceramic wares for technical uses. The blank
ceramic MH substrates are classified in subheading 6909.12.00, HTSUS.

Inasmuch as the subject goods are clearly classifiable under subheadings
6909.11.40 and 6909.12, HTSUS, it is not necessary to consider
classification in the residual heading 6914, HTSUS.

**HOLDING:**

The protest should be GRANTED as to the alternative classification
claimed. The blank ceramic substrates referred to as IC substrates are
classified in subheading 6909.11.40, which provides for, "Ceramic wares
for laboratory, chemical or other uses ... : ceramic wares for
laboratory, chemical, or other uses: of porcelain or china: other." The
blank ceramic substrates referred to as MH substrates are classified in
subheading 6909.12.00, HTSUS, which provides for, "Ceramic wares for
laboratory, chemical or other uses ... : ceramic wares for laboratory,
chemical, or other uses: articles having a hardness equivalent to 9 or
more on the Mohs scale."

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065,
dated August 4, 1993, Subject: Revised Protest Directive, you are to
mail this decision, together with the Customs Form 19, to the protestant
no later than 60 days from the date of this letter. Any reliquidation of
the entry or entries in accordance with the decision must be
accomplished prior to mailing the decision.

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