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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:

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:

Of porcelain or china:

6909.11.40 Other

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

Other ceramic articles

Other:

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, 640 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, 8th 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, 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,” “china” 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

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