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HQ 960556

February 13, 1998

CLA-2 RR:CR:GC 960556 RC


TARIFF NO.: 3823.90.39 (3824.90.39)

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).


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."


Are electronically activated doped zinc sulfides classifiable under subheading 3818.00.00, HTSUS?


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.


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.


John Durant, Director,
Commercial Rulings Division

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