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HQ 963844




May 9, 2000

CLA-2 RR:CR:GC 963844 MGM

CATEGORY: CLASSIFICATION

TARIFF NO.: 3206.50.00; 2846.90.80

Port Director
Port of New York c/o Chief, Residual Liquidation and Protest Branch 6 World Trade Center, Room 761
New York, NY 10048-0945

RE: Protest 1001-99-103254; Inorganic Mixtures P22-RE1 and KX-125A

Dear Port Director:

This is our decision regarding Protest 1001-99-103254 against your classification of two inorganic mixtures, P22-RE1 and KX-125A, under the Harmonized Tariff Schedule of the United States (HTSUS). The merchandise was entered on November 15, 1998, liquidated on May 28, 1999, and timely protested on July 2, 1999.

FACTS:

Customs Laboratory Report 2-1998-21504-001, dated June 4, 1998, states that P22-RE1 “is a solid solution (mixture) of europium oxide in yttrium oxide (inorganic compounds). The yttrium oxide content exceeds 85% by weight.” This is corroborated by the Material Safety Data Sheet (MSDS) which states that P22-RE1 consists of over 99% of yttrium oxide (Y2O3) with the balance being Europium. Protestant states that P22-RE1 is “composed between 19% and 85% by weight of the rare earth metal yttrium oxide, with the remainder being composed by weight of the rare earth metal europium oxide.”

Customs Laboratory Report 2-1998-21503-001, dated June 4, 1998, states that KX-125A “is a mixture of an yttrium compound with a smaller amount of zinc silicate doped with manganese (a non-rare earth compound)[t]he product is an inorganic luminophore used to produce a green color in cathode ray tube devices. The MSDS for KX-125A states that it is 90-95% Y3(Al,GA)5012:Tb and 5-10% Zn2SiO4:Mn. Similarly, the protestant describes KX-125A as “effectively a mixture of yttrium bearing compound [Y3(AlGA)5012] with a zinc silicate doped with a small amount of magnesium [Zn2SiO4:Mn].” Protestant further states “[i]t is a finished product used in the manufacture of color cathode ray and television tubes.”

ISSUES:

1. What is the correct classification of P-22 RE1 and KX-125A? 2. Have any entries of these products liquidated as a matter of law?

LAW AND ANALYSIS:

Classification

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 which 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 relative 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 understanding the language of the HTSUSA, 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).

Protestant entered both P22-RE1 and KX-125A in heading 2846, HTSUS, which provides as follows (ten-digit statistical suffixes omitted):

2846 Compounds, inorganic or organic, of rare-earth metals, of yttrium or of scandium, or of mixtures of these metals: 2846.10.00 Cerium compounds
2846.90 Other:
2846.90.20 Mixtures of rare-earth oxides or of rare-earth chlorides Other:
2846.90.40 Yttrium bearing materials and compounds containing by weight more than 19 percent but less than 85 percent yttrium oxide equivalent 2846.90.80 Other.

Heading 2846, HTSUS, must be read in light of Note 1(b), Section VI, HTSUS, which states that “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.”

EN 28.46 discusses the scope of heading 2846, HTSUS. It provides as follows:

This heading covers the inorganic or organic compounds of yttrium, of scandium or of the rare-earth metals of heading 28.05.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.

This EN makes it clear that heading 2846 does not include all mixtures which contain a rare-earth metal, yttrium or scandium. Rather the heading is limited, at a minimum, to mixtures of compounds in which each compound contains a rare-earth metal, yttrium or scandium. That is, the presence of a single compound of a rare-earth metal does not justify inclusion within heading 2846 of a mixture which includes compounds other than those of rare-earth metals, yttrium or scandium.

KX-125A

Protestant, in discussing the classification of KX-125A, disputes this point, stating “[n]either the tariff nor its Explanatory Notes require that the products in question be composed exclusively of rare-earth metals or of oxides of these metals.” In support of this argument, protestant cites Headquarters Ruling Letter (HQ) 956835, of September 19, 1995, which held that small (less than 10%) amounts of other compounds present as residue from a manufacturing process did not exclude yttrium oxide, lanthanum oxide or neodymium oxide from heading 2846. It is true that impurites resulting from a manufacturing process do not exclude a compound from Chapter 28. Note 1(a), Chapter 28, HTSUS. However, where an addition serves to render a compound particularly suitable for a specific use, such added material acts to exclude the merchandise from Chapter 28. Note 1(e), Chapter 28, HTSUS. The merchandise at issue in HQ 956835 differs from KX-125A in that KX-125A is a “finished product.” See Protestant’s Memorandum of Points and Authorities in Support of Protest at p. 2. KX-125A contains “zinc silicate doped with a small amount of magnesium (sic).” Thus, zinc silicate doped with manganese is not present in KX-125A as a residue of a manufacturing process, rather it was intentionally added to make the mixture more suitable for use in the manufacture of color cathode ray and television tubes. KX-125A is therefore excluded from Chapter 28, HTSUS.

At liquidation, KX-125A was classified in heading 3206, HTSUS, which provides for, inter alia, “inorganic products of a kind used as luminophores.”

Inorganic products of a kind used as luminophores are products which, under the action of visible or invisible radiations (solar rays, ultra-violet rays, cathode rays, X-rays, etc.), produce a luminescent effect.”

Most of these products consist of metal salts activated by the prescence in very small quantities of “activating” products such as silver, copper or manganese. Luminophores are used in the preparation of luminous paints and for coating screens for television[s]. EN 32.06 (B).

KX-125A is used as a phosphor in a cathode ray tube. See Protestant’s Memorandum of Points and Authorities in Support of Protest at p. 2. A phosphor is “a substance, either organic or inorganic, liquid or crystalline, that is capable of luminescence, that is, of absorbing energy from sources such ascathode raysand emitting a portion of the energy in the ultraviolet, visible or infrared. Hawley, Condensed Chemical Dictionary, 10th edition. “Many phosphors now make use of materials which incorporate transition elements, such as yttrium, and the lanthanoid metals[s]ome of these materials will emit radiation in the pure state. Most, however, display practical luminescence only when activated by an impurity.” McGraw-Hill Multimedia Encyclopedia of Science and Technology, “cathode-ray tube” entry. Thus, KX-125A is a luminophore of heading 3206, HTSUS.

P22-RE1

P22-RE1 was entered under subheading 2846.90.20, HTSUS, as a mixture of rare-earth oxides or of rare-earth chlorides. P22-RE1 is over 99% by weight composed of yttrium oxide, with the remainder made up of europium oxide. Europium oxide is a rare-earth oxide, however yttrium oxide is not, thus P22-RE1 is not a mixture of rare-earth oxides. See HQ 962102, dated August 24, 1999 (“for purposes of heading 2846, HTSUS, compounds of yttrium, or mixtures of compounds of yttrium (yttrium oxide) with compounds of rare-earth metals are properly classifiable in subheading 2846.90.40 or 2846.90.80, HTSUS, depending on the yttrium oxide content.”)

In the alternative, protestant suggests classification of P22-RE1 in subheading 2846.90.40, HTSUS, which provides for materials “more than 19 percent but less than 85 percent yttrium oxide equivalent.” However, a Customs laboratory has determined that the yttrium oxide content of this merchandise exceeds 85%. It is therefore ineligible for classification in subheading 2846.90.40, HTSUS.

Protestant’s statements that P22-RE1 contains less than 85% yttrium oxide are noted, however, this conflicts with the findings of Customs laboratories. It is Customs’ practice not to disregard the reports of Customs laboratories. See Customs Directive 099-3820-002, issued May 4, 1992, See also Consolidated Cork Corp. v. United States, 54 Cust. Ct. 83, C.D. 2512 (1965). Further, the protestant’s statements conflict with the MSDS for P22-RE1 which must be issued by a manufacturer or importer pursuant to regulations of the Occupational Safety and Health Administration. See 29 CFR 1910.1200(g). The MSDS states that P22-RE1 consists of over 99% of yttrium oxide (Y2O3) which directly contradicts the protestant’s assertions.

Liquidation as a Matter of Law

Protestant asserts that several entries have liquidated by operation of law. An entry of merchandise not liquidated within one year from the date of entry of such merchandise (or within one year of certain other events not at issue here) shall be deemed liquidated at the rate of duty, value, quantity, and amount of duties asserted at the time of entry by the importer of record unless such entry is extended or suspended. 19 U.S.C. 1504(a). In a letter dated March 29, 2000, protestant identified 7 entries argued to have liquidated by operation of law.

Of these 7, Customs records indicate that 4 were properly extended with notice to both importer and surety. That is, entry XXXX590-0 was entered January 20, 1998, extended October 1, 1998 and liquidated April 30, 1999; entry XXXX822-7 was entered March 16, 1998, extended January 21, 1999 and liquidated April 30, 1999; entry XXXX995-1 was entered April 17, 1998, extended March 1, 1999 and liquidated April 30, 1999; entry XXXX150-2 was entered May 24, 1998, extended February 23, 1999 and liquidated May 7, 1999. Thus none of these 4 entries have liquidated by operation of law.

The remaining 3 entries were timely liquidated within 1 year of entry, then reliquidated. Customs may voluntarily reliquidate a liquidation to correct errors in appraisement, classification or any other element of a liquidation within 90 days of liquidation. 19 U.S.C. 1501; 19 CFR 173.3(a). In each of the three entries at issue, reliquidation occurred within 90 days of liquidation. Specifically, entry XXXX706-2 was entered February 13, 1998, liquidated February 5, 1999 and reliquidated April 2, 1999; entry XXXX751-8 was entered February 25, 1998, liquidated February 19, 1999 and reliquidated April 2, 1999; entry XXXX844-1 was entered March 18, 1998, liquidated March 12, 1999 and reliquidated April 16, 1999. Thus, both the liquidations and reliquidations were timely and none of these 3 entries have liquidated by operation of law.

HOLDING:

KX-125A is classified in subheading 3206.50.00, HTSUS. P22-RE1 is classified in subheading 2846.90.80, HTSUS. No entries have liquidated by operation of law at the rate of duty asserted by the protestant. You should DENY the protest in full.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director

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