CLA-2 CO:R:G 086870 STB
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
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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
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"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
Commercial Rulings Division