CLA-2 CO:R:C:F 950697 EAB
John M. Peterson, Esquire
Neville, Peterson & Williams
39 Broadway
New York, New York 10006
Re: Zinc Sulfide doped with silver; HRL 950615
Dear Mr. Peterson:
This is in reply to your letter dated August 22, 1991 on
behalf of USR Optonix, Inc., in which you request a binding
ruling on the tariff classification under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) of a mixture of
zinc sulfide and silver.
FACTS:
The subject merchandise consists of 99.8% by weight of
unfluxed, unfired zinc sulfide mixed with 0.2% by weight of
silver. In its imported condition, the mixture will not
luminesce when subjected to radiation. Following importation,
the imported merchandise must be fluxed and fired, otherwise
luminescent properties will not attend. Even then, additional
extensive processes must occur in order for the resulting product
to be commercially usable as a luminophore in the manufacture of
CRTs and other electronic equipment.
You suggest classification under heading 3818, HTSUSA.
ISSUE:
What is the proper tariff classification under the HTSUSA of
a mixture of zinc sulfide and silver that has no luminescent
properties?
LAW AND ANALYSIS:
Merchandise imported into the U.S. is classified under the
HTSUSA. The tariff classification of merchandise under the
HTSUSA is governed by the principles set forth in the General
Rules of Interpretation (GRIs) and, in the absence of special
language or context which otherwise requires, by the Additional
U.S. Rules of Interpretation. The GRIs and the Additional U.S.
Rules of Interpretation are part of the HTSUSA and are to be
considered statutory provisions of law for all purposes.
The Explanatory Notes to the Harmonized Commodity
Description and Coding System represent the official
interpretation of the Customs Cooperation Council on the scope
of each heading; although neither binding upon the contracting
parties to the Harmonized System Convention nor considered to be
dispositive interpretations, they should be consulted on the
proper scope of the System.
GRI 1 requires that classification be determined first
according to the terms of the headings of the tariff schedule and
any relative section or chapter notes and, unless otherwise
required, according to the remaining GRI's taken in order.
In HRL 950615 (January 22, 1992), mixtures of zinc sulfides
and various metals that had been fluxed and fired were found to
be classifiable under subheading 3206.50.000, HTSUSA, a provision
for inorganic products of a kind used as luminophores. Essential
to the issue in that case was the fact that in their imported
condition, i.e., having been fluxed and fired, the compounds
exhibited the defining property of a luminophore, that being the
production of a luminescent effect under the action of visible or
invisible radiations.
In this case, the merchandise will not produce a luminescent
effect under the action of radiation.
Heading 3818 partly describes "chemical compounds doped for
use in electronics." Explanatory Note 38.18 states that the
heading is intended to cover chemical compounds, with a view to
their use in electronics, whether in the form of cylinders, rods,
etc., or cut into discs, wafers or similar forms. Although the
subject merchandise has been doped with the silver additive, it
still must be fluxed and fired with a view to its use in
electronics. Lacking a luminescent property, the merchandise is
a mere material which must undergo further processing before it
can be used in electronics. We are of the opinion that the
subject merchandise is not described in heading 3818 of the
Schedule.
Heading 2830 partly describes sulfides. Explanatory Note
28.30(2) states that zinc sulfide activated with silver gives a
luminophore of heading 3206, and emphasizes that zinc sulfide is
classified in heading 2830 only when unmixed and non-activated.
Heading 3206 partly describes inorganic products of a kind
used as luminophores, whether or not chemically defined. The
Explanatory Notes to this heading state that inorganic products
of a kind used as luminophores are products which, under the
action of radiations, produce a luminescent effect. Further,
although most of such products consist of metal salts activated
by the presence of silver, copper or manganese, other such
products are metal salts which owe their luminescent properties
not to the presence of activating agents, but to a treatment
giving them a very special crystalline structure. Finally, such
other products which owe their luminescent properties to a
crystallization treatment but are in a non-luminescent form are
excluded from classification under heading 3206, and are
classifiable under appropriate provisions of chapter 28.
Although the subject merchandise does not exhibit
luminescent properties, we are of the opinion that it is most
specifically described as an unfinished inorganic product of a
kind used as luminophores, which is activated by the presence of
silver, and not one which would owe its luminescent properties to
a treatment resulting in a very special crystalline structure.
We are mindful of Explanatory Note (IX) to GRI 2(a), which
states: "In view of the scope of the headings of Sections I to
VI, this part of the Rule does not normally apply to goods of
these Sections." We believe that use of the word "normally"
characterizes such note as cautionary, not exclusionary.
We are of the opinion that the subject merchandise is
described under subheading 3206.50, HTSUSA.
HOLDING:
A mixture of zinc sulfide doped with silver and having no
luminescent properties is classifiable under subheading
3206.50.0000, HTSUSA, a provision for inorganic products of a
kind used as luminophores, whether or not chemically defined;
inorganic products of a kind used as luminophores. Goods so
classified are dutiable at the column one general rate of duty of
10% ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division