CLA-2 RR:CR:GC 960556 RC
Port Director of Customs
300 South Ferry Street
Terminal Island, California 90731
RE: Protest 2704-95-102693; Electronically activated doped zinc
sulfides
Dear Port Director:
This is our decision on protest 2704-95-102693, timely filed
August 28, 1995, against your decision in the classification of
various grades of electronically activated doped zinc sulfides
under the Harmonized Tariff Schedule of the United States
(HTSUS).
FACTS:
The subject merchandise is two types of zinc sulfide
products; that which is fluxed and fired prior to importation and
that which is imported in an unfluxed and unfired state. The
unfluxed, unfired product has been doped or mixed with a small
mount of silver sulfide, although, in its condition at
importation, it does not luminesce. In contrast, the fluxed and
fired zinc sulfide can crudely luminesce in their condition as
imported. The protestant claims that both types of zinc sulfide
are classifiable in subheading 3818.00.00, HTSUS, as "[c]hemical
elements doped for use in electronics, in the form of discs,
wafers or similar forms; chemical compounds doped for use in
electronics." You classified both in subheading 3206.50.00,
HTSUS, which provides for "[o]ther coloring matter; preparations
as specified in note 3 to this chapter, other than those of
heading 3203, 3204 or 3205; inorganic products of a kind used as
luminophores, whether or not chemically defined: Pigments and
preparations based on titanium dioxide, Other."
ISSUE:
Are electronically activated doped zinc sulfides
classifiable under subheading 3818.00.00, HTSUS?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with
the General Rules of Interpretation (GRIs). The systematic
detail of the HTSUS is such that virtually all goods are
classified by application of GRI 1, that is, 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 GRIs may then
be applied. GRI 6 provides that the GRIs apply in the same
fashion to subheadings within the same heading. The products at
issue are classifiable by applying GRI 1, that is, according to
the terms of the applicable heading and subheading.
The Harmonized Commodity Description and Coding System
Explanatory Notes (ENs) constitute the official interpretation of
the HTSUS. While not legally binding, and therefore not
dispositive, the ENs provide a commentary on the scope of each
heading of the HTSUS and are thus useful in ascertaining the
proper classification of merchandise under the System. Customs
believes the ENs should always be consulted. See, T.D. 89-80, 54
Fed. Reg. 35127, 35128 (Aug. 23, 1989).
In HQs 950615, dated January 22, 1992, and 950697, dated
February 19, 1992, Customs held that both types of zinc sulfide
products were classifiable under subheading 3206.50.00, HTSUS, as
inorganic products of a kind used as luminophores, whether or not
chemically defined. The protestant claims that both varieties
are classified in subheading 3818.00.00, HTSUS, as chemical
compounds which have been doped for use in electronics. However,
the protestant has provided no new information or arguments to
alter Customs position.
The EN to heading 3818 provides, in pertinent part:
This Heading covers:
(2) Chemical compounds such as cadmium selenide and
sulphide, indium arsenide, etc., containing certain
additives (e.g., germanium, iodine) generally in a
proportion of a few percent, with a view to their use
in electronics, whether in the form of cylinders, rods,
etc., or cut into discs, wafers or similar forms.
The heading covers such crystals, polished or not,
whether or not coated with a uniform epitaxial layer.
Those more extensively worked (e.g., by selective
diffusion) fall in heading 85.41 as semiconductor
devices.
The ENs to heading 3818 serve to limit the application of
this heading to crystals such as cylinders, rods which may be cut
into discs, wafers and similar forms. There is no dispute that
the subject merchandise is in the form of a powder. It is Customs
position that the powder is not a "similar form" to the crystal
forms listed in the ENs. The exemplars which appear in the EN to
provide guidance as to the scope of heading 3818, direct that the
heading covers crystals used to make semiconductor devices such
as diodes, transistors, integrated circuits, etc. Additionally,
we note the use of the phrase, "[t]he heading covers such
crystals . . . ." In our view, this reference to "crystals," as
well as the last line of the EN regarding "semiconductor
devices," provides the clearest indication that the nature and
common characteristics of the chemical compounds covered by
heading 3818 is that of crystals which will be used to make
semiconductor devices. Furthermore, each of the named exemplars
is recognized for its semiconductor uses. Thus, none of the
merchandise at issue is classifiable under Heading 3818.
As an alternative, the protestant suggests that subheading
3206.42, HTSUS, which provides for "Other coloring matter and
preparations: lithopone and other preparations based on zinc
sulfide," is appropriate. However, this provision fails for the
simple reason that the product at issue cannot be characterized
as "coloring matter" in either its active or inactive form since
it neither has the pigment properties necessary nor is it
intended to be used for the purposes of coloring matter in
Heading 3206. Based upon our discussions with analysts in the
New York Customs Laboratory as well as the National Import
Specialist, to identify the subject fluxed and fired doped zinc
sulfide as "coloring matter" would be analogous to saying mud is
coloring matter.
Although we continue to find the protestant's classification
claims unacceptable, it is no longer Customs position that either
the fluxed and fired or the unfluxed and unfired product is
properly classifiable under subheading 3206.50.00, HTSUS. First,
the unfluxed and unfired product, which Customs concedes does not
even crudely luminesce, clearly does not meet the plain language
of the subheading or the pertinent ENs and must be classified
elsewhere. With respect to the fluxed and fired importation,
while we recognize that this product may luminesce
crudely, it is also clear that the product must undergo several
fundamental manufacturing processes before it can be commercially
used as a luminophore. We now agree with the assertion that not
all products which luminesce are properly classifiable under
subheading 3206.50.00, especially if, in their condition as
imported they are not fit for use commercially as luminophores,
for example in the production of phosphor chemicals which are
used in the manufacture of Cathode Ray Tubes. Furthermore, in HQ
950697, dated February 19, 1992, Customs relied upon GRI 2(a) and
found that this product falls within subheading 3206.50.00, as an
unfinished inorganic product of a kind used as luminophores.
Customs made this determination notwithstanding the fact that EN
(III) to GRI 2(a) 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.
Since subheading 3206.50.00, falls in Section VI, HTSUS, it
is now Customs' position that classification in subheading
3206.50.00, pursuant to GRI 2(a) would be difficult to justify.
Therefore, it is now Customs posture that both of the
products at issue properly classifiable at the time of entry in
subheading 3823.90.39, HTSUS, with a general rate of duty of
free, would have been as mixtures of two or more inorganic
compounds, other (currently subheading 3824.90.39). Thus, the
fluxed and fired doped zinc sulfide product is appropriately
described as a mixture of an inorganic complex compound and
inorganic fluxing salts. The unfluxed and unfired product is
likewise classifiable in the above provision since, at
importation it consists of zinc sulfide mixed with a minute
quantity of silver sulfide.
Our decision is in accordance with a settlement agreement
reached by the parties in USR Optonix, Inc. v. United States,
Court No. 92-04-00231 (Court of International Trade). Customs
takes the position that insofar as there are individual
classification rulings or preclassification decisions that are
inconsistent with the USR Optonix decision, they have been
revoked by operation of law. See, Section 152.16(e), Customs
Regulations, 19 CFR 152.16(e). Customs
will neither amend preclassification rulings nor issues regular
binding rulings on its own initiative, but will respond to
requests for new rulings that will be issued based on the change
in the applicable law.
HOLDING:
Both of the products at issue were properly classifiable in
subheading 3823.90.39, HTSUS, duty free, as mixtures of two or
more inorganic compounds, other (currently subheading
3824.90.39).
Since reclassification of the merchandise as indicated above
would result in a lower rate of duty as claimed, you should allow
the protest in full. 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.
In accordance with Section 3A (11)(b) of Customs Directive
0993550-065, dated
August 4, 1993, Subject: Revised Protest Directive, this
decision, together with the Customs Form 19, should be mailed by
your office to the protestant no later than 60 days from the date
of this letter. Any reliquidation of the entry in accordance
with the decision must be accomplished prior to mailing of the
decision. Sixty days from the date of the decision, the Office
of Regulations and Rulings will take steps to make the decision
available to Customs personnel via the Customs Ruling Module in
ACS and the public via the Diskette Subscription Service, Freedom
of Information Act and other public access channels.
Sincerely,
John Durant, Director,
Commercial Rulings Division