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HQ 964855





August 28, 2002

CLA-2 RR:CR:GC 964855AM

CATEGORY: CLASSIFICATION

TARIFF NO.: 2846.90.80

Port Director
U.S. Customs Service
One East Bay Street
Savannah, GA 31401

RE: Protest 1703-01-100007; lanthanum carbonate doped with praesodymium

Dear Port Director:

This is our decision on Protest 1703-01-100007, filed by counsel on behalf of Advanced Material Resources, Inc., against your decision in the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of lanthanum carbonate (La2(CO3)3) doped with praesodymium (“Pr”). In preparing this ruling, we have also considered counsel's submission dated February 1, 2001, and information imparted in a telephone conference with a chemical engineer in the employ of protestant, a representative of the Customs laboratory and Headquarters personnel on August 23, 2002.

FACTS:

Customs Laboratory Report SV20000758, dated November 20, 2000, states, in pertinent part, “[T]he sample, a fine white colored solid, is lanthanum carbonate. Lanthanum is a rare earth metal.” A "rare earth metal" is one of a "large family of chemical elements. The rare earths themselves are the oxides of these metals . . . commonly occurring together . . . . The rare-earth elements are very similar chemically because of their general similarity in atomic structure. All of them have three electrons in the outermost shells of their atoms and are therefore trivalent in their compounds." Encyclopeadia Britannica, Vol 9., p.944.

A compound is “a substance composed of two or more elements chemically united in a fixed proportion.” Hawley's Condensed Chemical Dictionary, 12th Edition, Van Nostrand Reinhold Company, NY. The term "mixture" means "a heterogeneous association of substances which cannot be represented by a chemical formula. Its components may or may not be uniformly dispersed, and can usually be separated by mechanical means." Id.

Counsel for the protestant states that the instant product is created through co-precipitation of lanthanum carbonate and Pr from the crude substance in a chloride solution producing a 99+% lanthanum carbonate doped with Pr carbonate. Counsel further states that lanthanum carbonate doped with Pr is "used for a variety of purposes, including the formulation of glass polishes, as a stabilizer for catalysts, and for other glass chemistry functions." Protestant stated in a telephone conference that the product was principally used as a catalyst in the petroleum industry. Counsel has submitted an independent laboratory analysis and letter from the importer showing that the subject merchandise consists of almost 50% rare earth oxides and 50% carbonate. Lanthanum oxide (La2O3) comprises 99.66% of the rare earth oxides in the compound with the balance consisting of other rare earth oxides, including Pr, and non-rare earth impurities.

The subject protest was filed on June 16, 2000, the liquidation date of the entry. Protestant entered the product under subheading 2846.90.20, HTSUS, the provision for "[C]ompounds, inorganic or organic, of rare-earth metals, of yttrium or of scandium, or of mixtures of these metals: [O]ther: [M]ixtures of rare earth oxides or of rare earth chlorides". The entry was liquidated under subheading 2846.90.80, HTSUS, the provision for "[C]ompounds, inorganic or organic, of rare-earth metals, of yttrium or of scandium, or of mixtures of these metals: [O]ther: [O]ther". The protestant now states that the goods should be classified in subheading 3824.90.39, HTSUS, the provision for “[P]repared 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: [O]ther: [M]ixtures of two or more inorganic compounds: [O]ther."

ISSUES:

What is the classification of lanthanum carbonate doped with Pr under the HTSUS?

LAW AND ANALYSIS:

Merchandise imported into the United States 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 for all purposes.

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 their appropriate 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 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).

The HTSUS provisions under consideration are the following:

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

2846.90 Other

2846.90.20 Mixtures of rare earth oxides or of rare earth chlorides

2846.90.80 Other

3824 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:

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, HTSUS, 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, . . ."

The EN's to Chapter 28 state, in pertinent part, the following:

GENERAL

(C) Products which remain classified in Chapter 28, even when they are not separate chemical elements nor separate chemically defined compounds.

There are certain exceptions to the rule that this Chapter is limited to separate chemical elements and separate chemically defined compounds. These exceptions include the following products: . . .

Heading 28.46-Compounds, inorganic or organic, of rare-earth metals, of yttrium or of scandium or of mixtures of these metals.

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. (emphasis added).

In accordance with the section note quoted above, if the merchandise is classifiable in heading 2846, HTSUS, it can not be classified in heading 3824, HTSUS, because heading 3824, HTSUS, also falls in section VI, HTSUS. The merchandise consists of 99+% lanthanum carbonate, a separate chemically defined compound, classifiable in heading 2846, HTSUS. In accordance with EN part (C) to Chapter 28, note 1, we have consistently ruled that 99% pure compounds of heading 2846, HTSUS, remain in that heading. See HQs 956835, dated September 19, 1995, 962328, 962329 and 962102, dated August 24, 1999, and 962804 dated July 30, 2001.

Protestant states that the language of EN 28.46 prohibits classification of the instant product in that heading. Simply stated, the EN describes some of the mixtures that are included in the heading. A mixture of the compounds cerium chloride and cerium sulphate are not included because they consist of "mixtures of salts having different anions" even though the cation is the same. Such mixtures of salts are conceivably made intentionally for special purposes.

Counsel ignores the fact that the laboratory analysis submitted by protestant lists the lanthanum in the substance as an oxide also. The composition of the substance is expressed in the submitted Certificate of Analysis in terms of the "Total Rare Earth Oxide" content. However, the imported merchandise actually consists of 99+% lanthanum carbonate, other rare earth carbonate compounds and non-rare earth impurities. Hence the EN regarding different anions does not preclude this substance from inclusion in heading 2846.

Rather, the wording of the EN disputes counsel's arguments that the heading does not apply to mixtures of compounds. For instance, oxides, hydroxides and salts are all compounds. The EN explicitly states that "the heading will include mixtures of oxides or hydroxides of the elements or mixtures of salts with the same anion." By definition, the mixtures described are mixtures of compounds.

Furthermore, the General ENs specifically list heading 2846 as an exception to the "separate chemically defined compound" rule. It can not be an exception if only compounds are included in it.

At GRI 6, the substance is not a mixture of rare earth oxides or chlorides but rather it consists of carbonates. It therefore belongs in subheading 2846.90.80, the provision for other rare earth compounds.

HOLDING:

Lanthanum carbonate, Pr doped is classified in subheading 2846.90.80, HTSUS, the provision for "[C]ompounds, inorganic or organic, of rare-earth metals, of yttrium or of scandium, or of mixtures of these metals: [O]ther: [O]ther: [O]ther." The protest is DENIED.

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,

Myles B. Harmon, Acting Director

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