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HQ 087512

November 21, 1990

CLA-2 CO:R:C:G 087512 STB

CATEGORY: CLASSIFICATION

TARIFF NO.: 3823.90.29

Mr. Eric Noel
Prolufab
24, Rue Emile Duclaux
92150 Suresnes, France

RE: Chemiluminescent Products

Dear Mr. Noel:

This is in response to your inquiry of June 22, 1990, concerning the tariff classification and possible patent infringement of your chemiluminescent lightstick products. Several samples were submitted with your inquiry.

FACTS:

The lightsticks 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.

The samples were analyzed by the New York Customs Laboratory which determined that they contained a mixture of 5% or more by weight of one or more aromatic or modified aromatic substances.

ISSUES:

1. Do the subject chemiluminescent lightsticks fall within the scope of United States International Trade Commission Exclusion Order 337-TA-285, and, if so, do they violate any existing patents?

2. What is the proper classification of the subject chemiluminescent lightsticks?

LAW AND ANALYSIS:

Applicability of Exclusion Order

A copy of your inquiry has been forwarded to the U.S. Customs Intellectual Property Rights (IPR) Task Force. They will address this issue in a response to be provided to you under separate cover.

Tariff Classification

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 relative 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.

It is our determination that the merchandise can be further classified into the eight digit subheading of 3823.90.29, HTSUSA. This subheading, which allows for "[other] mixtures containing 5 percent or more by weight of one or more aromatic or modified aromatic substances" is the most specific description for the merchandise in question.

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 3.7 cents/kg plus 13.6% ad valorem.

Sincerely,

John Durant, Director

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