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HQ 950697


February 19, 1992

CLA-2 CO:R:C:F 950697 EAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 3206.50.0000

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

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