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HQ 967300




November 18, 2005

CLA-2 RR:CTF:TCM 967300 AM

CATEGORY: CLASSIFICATION

TARIFF NO.: 3824.90.3900

Mr. George R. Tuttle
Three Embarcadero Center, Suite 1160
San Francisco, CA 94111

RE: tariff classification of Yttria C; Revocation of HQ 962804

Dear Mr. Tuttle:

This is in regard to Headquarters Ruling Letter (HQ) 962804, dated July 20, 2001, regarding the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of Yttria C. That ruling held that the product was classified in subheading 2846.90.80, HTSUS, the provision for "Compounds, inorganic or organic, of rare-earth metals, of yttrium or of scandium, or of mixtures of these metals: Other: Other: Other.” We have reviewed HQ 962804 and find it to be incorrect.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by Title VI, a notice was published in the August 24, 2005, CUSTOMS BULLETIN, Volume 39, Number 35, proposing to revoke 962804, dated July 20, 2001, and to revoke any treatment accorded to substantially identical transactions. One comment was received in favor of the ruling attached to that notice.

HQ 962804 is a Headquarters ruling on Protest 2904-99-100020. Under San Francisco Newspaper Printing Co. v. United States, 9 CIT 517, 620 F. Supp. 738 (1985), the liquidation of the entries covering the merchandise which was the subject of Protest 2904-99-100020 was final on both the protestant and CBP. Therefore, this decision has no effect on those entries.

FACTS:

Yttria C is a pale yellow powder consisting of more than 99% yttrium oxide and approximately .25 percent of a dopant that functions as a sintering aid. The sintering aid is used to create a larger particle yttrium oxide specifically for use in the metal casting industry. The sintering aid does not consist of a compound including yttrium, scandium or rare-earth metals of heading 2805, HTSUS.

Lab Report 2-96-21505-001, dated April 12, 1996, analyzing previous entries of Yttria C, by Grand Northern Products, states, in pertinent part, "The importer indicates that a small amount of [sintering aid] is blended and fired with the yttrium oxide resulting in crystals of increased particle size. This denotes a single compound." Lab Report 2-1999-22129, dated November 15, 1999, states, in pertinent part, " . . .the sample, a fine off-white powder, is yttrium oxide containing a small amount of [sintering aid]. Information from the manufacturer indicates that this product contains approx. 2300 PPM (0.23%) [sintering aid]."

Lab Report SF20010085, dated June 4, 2001, states, in pertinent part, the following:

This sample is a pale yellow powder named "Yttria C." Laboratory analysis and information from the maker indicates that it is composed of 99+ percent yttrium oxide and approximately .25 percent [of a dopant that functions as a sintering aid]. In our opinion, this material is not a mixture of chemical compounds. The [sintering aid] that was added functions as a sintering aid ( . .) that is used to densify the original yttrium oxide powder and to reduce its surface area. It apparently reacts with the yttrium oxide to either a solid solution (as claimed by the maker) or a mixed oxide of yttrium and [the sintering aid]. The latter is regarded as an unwanted impurity. This and other information ( . . .) clearly indicate that the [sintering aid] is used in the manufacturing process for Yttria C. Otherwise, it has no functional role in Yttria C. . . . [Thus, Yttria C is] a lower cost alternative to fused yttrium oxide.

ISSUE:

Is a greater than 99% yttrium oxide product excluded from classification in Chapter 28 by virtue of having a minute amount of another chemical added to it as a processing aid?

LAW AND ANALYSIS:

Merchandise imported into the U.S. is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context that requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law.

GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any related section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs. In interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).

Furthermore, "it is a well-established principle that classification of an imported article must rest upon its condition as imported." E. T. Horn Company v. United States, Slip Op. 2003-20, (CIT, 2003), (citing Carrington Co. v. United States, 61 CCPA 77, 497 F.2d 902, 905 (CCPA 1974), United States v. Baker Perkins, Inc., 46 CCPA 128, (1959)).

The HTSUS provisions under consideration are as follows:

2846 Compounds, inorganic or organic, of rare-earth metals, of yttrium or of scandium, or of mixtures of these metals:

2846.90 Other:

Other:

2846.90.80 Other

Prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included:

Other:

Other:

Mixtures of two or more inorganic compounds:

3824.90.39 Other

Section note 1(b) to Section VI, HTSUS, provides as follows: "Subject to paragraph (a) above, goods answering to a description in heading 2843 or 2846 are to be classified in those headings and in no other heading of this section." Chapter Note 1(a) to chapter 28 states, in pertinent part, "[E]xcept where the context otherwise requires, the headings of this chapter apply only to: (a) [S]eparate chemical elements and separate chemically defined compounds, whether or not containing impurities, . . ."

In USR Optonix, Inc. v. United States, slip op. 05-27, February 18, 2005, the court relied on EN 28.46 to define the scope of the term “compounds” in heading 2846. The court found that the term “compounds” used in heading 2846 is sufficiently broad enough to include both a non-stoichiometric compound or a mixture of yttrium oxide and europium oxide without deciding factually whether the substance was a compound or a mixture. Id. at 22. However, the case is silent on the matter of a mixture of yttrium oxide and a compound including elements other than yttrium, scandium or those rare-earth metals of heading 2805, HTSUS.

EN 28.46 states, in pertinent part, the following:

This heading covers the inorganic or organic compounds of yttrium, of scandium or of the rare-earth metals of heading 28.05 (lanthanum, cerium, praseodymium, neodymium, samarium, europium, gadolinium, terbium, dysprosium, holmium, erbium, thulium, ytterbium, lutetium). The heading also covers compounds derived directly by chemical treatment from mixtures of the elements. This means that the heading will include mixtures of oxides or hydroxides of these elements or mixtures of salts having the same anion (e.g., rare-earth metal chlorides), but not mixtures of salts having different anions, whether or not the cation is the same. The heading will not therefore, for example, cover a mixture of europium and samarium nitrates with the oxalates nor a mixture of cerium chloride and cerium sulphate since these examples are not compounds derived directly from mixtures of elements, but are mixtures of compounds which could be conceived as having been made intentionally for special purposes and which, accordingly, fall in heading 38.24.

In HQ 962804, we believed that, to the extent the Yttria C consisted of more than one compound, heading 2846 was broad enough to encompass that mixture under Section note 1(b) to Section VI and Chapter 28, note 1(a). Hence, we found that the miniscule amount of remaining sintering aid present in the yttrium oxide constituted an impurity.

However, the unique mixture found in Yttria C has been made intentionally for the special purpose of creating a larger particle yttrium oxide. Therefore, using EN 28.46, the mixture falls in heading 3824, HTSUS. Furthermore, because the sintering aid is not found in the starting material and is not a rare earth oxide, the holding in USR Optonix, supra, does not apply to these facts.

Yttria C is classified in subheading 3824.90.39, HTSUS, the provision for, “Prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included: Other: Other: Mixtures of two or more inorganic compounds: Other.” This decision is consistent with a Harmonized System Committee decision to classify the substance in subheading 3824.90, HTS (HSC/34, Annex IJ/1 to Doc NC0892B2, Oct. 2004, pg. VI/11E).

However, this ruling is confined to the facts represented herein and does not diminish the scope of heading 2846, HTSUS, as outlined in USR Optonix, supra. Yttrium products will continue to be classified on a case by case basis.

HOLDING:

HQ 962804 is revoked. Yttria C is classified in subheading 3824.90.3900, HTSUSA (annotated), the provision for, “Prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included: Other: Other: Mixtures of two or more inorganic compounds: Other.” The General column one rate of duty is free.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov.

In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.

EFFECT ON OTHER RULINGS:

HQ 962804 is revoked.

Sincerely,


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