HQ 0086870 - Chemiluminescent Lightsticks - United States International Trade Commision Rulings

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HQ 086870
July 20, 1990

CLA-2 CO:R:G 086870 STB

CATEGORY: CLASSIFICATION

TARIFF NO.: 3823.90.29

Mr. Peter J. Fitch
Fitch, King and Caffentzis
Attorneys and Counselors at Law
35 Beach Road
Monmouth Beach, NJ 07750

RE: Chemiluminescent Lightsticks

Dear Mr. Fitch:

Your letter of March 12, 1990 concerns the tariff classification of Chemiluminescent Lightsticks manufactured in Japan. Samples were submitted with your request.

FACTS:

The light sticks consist of an outer flexible plastic tube which contains a mixture of chemicals and, in addition, another glass ampoule which in turn contains another chemical mixture. The sticks are activated when the outer tube is bent, causing the inner glass ampoule to break and the two chemical mixtures to mix and form another mixture which fluoresces.

Confidential composition data submitted by the inquirer concerns various types of lightsticks which fluoresce in different colors depending on the slight differences in the chemical composition. In all cases the chemical mixtures in both the outer tube and the inner glass ampoule contain aromatic components in excess of 70 percent by weight.

According to counsel for the importer, the light sticks in question are used in a variety of applications, including industrial and military applications calling for an illuminating function. They are also used as fishing lures. Counsel for the importer states that there is no single predominant use for lightsticks, per se, in the United States, and that additional applications are being found "constantly."

The samples were analyzed by the New York Customs Laboratory in Laboratory Report Nos. 2-90-21107-001 through 2-90-21114-001. All of the samples were described as consisting of plastic rods containing "a mixture of aromatic or modified aromatic
substances, which produces chemiluminescence." Only the size of the plastic rods varied from sample to sample.

ISSUE:

What is the proper classification for the subject chemiluminescent lightsticks?

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) set forth the legal framework in which merchandise is to be classified under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). GRI 1 requires that classification be determined first according to the terms of the headings of the tariff and any relevant section or chapter notes and, unless otherwise required, according to the remaining GRI's taken in order. In this case, classification can be effected by reference to GRI 1.

Chapter 38, HTSUSA, provides for "Miscellaneous Chemical Products" and Heading 3823, HTSUSA, provides for the following:

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; residual products of the chemical or allied industries, not elsewhere specified or included.

The Explanatory Notes to the HTSUSA, which provide the interpretation of the Harmonized Schedule at the international level, state that these chemiluminescent lightsticks fall squarely in Heading 3823, HTSUSA. Explanatory Note 38.23 (B)(34) states that this heading includes, inter alia:

(34) Articles producing a lighting effect by the phenomenon of chemiluminescence, e.g., lightsticks in which the lighting effect is obtained by a chemical reaction between oxalic acid type esters and hydrogen peroxide in the presence of a solvent and a fluorescent compound.

You are in agreement that this merchandise is properly classifiable under Heading 3823, HTSUSA.

The question arises, however, as to which eight digit subheading provides the proper classification for the subject lightsticks. It is our determination that the proper subheading is 3823.90.29, HTSUSA. This subheading, which allows for

"mixtures containing 5 percent or more by weight of one or more aromatic or modified aromatic substances" specifically describes the merchandise in question.

You contend that the proper classification is under subheading 3823.90.50, HTSUSA. We disagree. Subheading 3823.90.50 also applies to mixtures; if these lightsticks cannot be classified as mixtures as you contend, then they cannot be classified under subheading 3823.90.50, HTSUSA. Subheading 3823.90.50 provides a less specific description of the merchandise than does subheading 3823.90.29. The cases which you cite were decided under TSUS and are of limited relevance in this case. Moreover, in E.M Chemicals v. United States, C.I.T. , Slip Op. 89-146, an important rationale provided by the court in deciding that the substance in question should not be classified as a mixture was that another, more accurate and specific description existed elsewhere in the Tariff Schedule. Such is not the case here.

HOLDING:

The subject chemiluminescent lightsticks are properly classifiable in subheading 3823.90.29, HTSUSA, which provides 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)...other: mixtures containing 5 percent or more by weight of one or more aromatic or modified aromatic substances: other. The applicable duty rate is 3.7c/kg plus 13.6% ad valorem.

Sincerely,

John Durant, Director

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