CLA-2 RR:CR:GC 962102 EAB/PH
John M. Peterson, Esquire
Neville, Peterson & Williams
80 Broad Street, 34th
New York, New York 10004
RE: Mixtures of compounds of yttrium; NY 856525, NY 855057 and NY 854686 revoked
Dear Mr. Peterson:
In New York Ruling Letter (NY) 856525 dated October 16, 1990, and NY 855057 dated August 10, 1990, issued to you on behalf of your client USR Optonix Inc., by the Director, Customs National Commodity Specialist Division, New York, mixtures of compounds of yttrium with compounds of rare earth metals were held to be classifiable in subheading 2846.90.20, Harmonized Tariff Schedule of the United States (HTSUS), as mixtures of rare earth oxides other than cerium oxides. In NY 854686 dated August 9, 1990, issued to you on behalf of the same client, by the Area Director, New York Seaport, a mixture of yttrium oxide and terbium oxide was held to be classifiable in subheading 2846.90.20, HTSUS.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization), of the North American Free Trade Agreement Implementation Act (Pub. Law 103-182, 107 Stat. 2057), notice of the proposed revocation of NY 856525, NY 855057, and NY 854686 was published on July 14, 1999, in the CUSTOMS BULLETIN, Volume 33, Number 28. Two comments, which are addressed in this ruling, were received.
FACTS:
The merchandise consists of:
1. A powder composed of europium oxide and vary small amounts of gadolinium, yttrium and neodymium oxides (NY 856525);
2. A powder composed of terbium oxide and very small amounts of gadolinium, yttrium and neodymium oxides (NY 855057); and
3. A powder composed of yttrium oxide and a small amount of terbium oxide (NY 854686).
The merchandise is used in the electronics field.
ISSUE:
Whether mixtures of compounds of yttrium (yttrium oxide) with compounds of rare-earth metals are classifiable as mixtures of compounds of rare-earth metals or as mixtures of compounds of yttrium.
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6, taken in order.
The Harmonized Commodity Description and Coding system Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the ENs should always be consulted. See T.D. 89 80, published in the Federal Register August 23, 1989 (54 FR 35127, 35128).
There is no disagreement that the articles are classified in heading 2846, HTSUS. The HTSUS heading and subheadings under consideration are as follows:
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
The key to this matter is the meaning of "rare-earth metals", as used in heading 2846, HTSUS (i.e., whether yttrium is included within that term). "It is well established that when a tariff term is not specifically defined and the legislative history is insufficient in establishing a definition ‘the term is to be construed in accordance with its common and popular meaning" (American Bayridge Corp. v. United States, 35 F. Supp. 2d 922, 933 (CIT 1998), quoting E.M. Chemicals v. United States, 9 Fed. Cir. (T) 33, 37, 920 F.2d 910 (Fed. Cir. 1990)).
Webster’s New World Dictionary of American English (3rd Coll. Ed., 1988), defines "rare-earth metals" as "any of a group of rare metallic chemical elements with consecutive atomic numbers of 57 to 71 inclusive ..." (Yttrium has the atomic number 39, and thus would not be included within this definition.) Webster’s Third New International Dictionary of the English Language (1993) defines "rare-earth element or rare-earth metal" as "any of the series of metallic elements whose oxides are the rare earths, which include the fourteen elements following lanthanum through lutetium with atomic numbers 58 through 71, usu. Lanthanum itself, and according to some yttrium and even scandium ..." Similar to the latter, the Encyclopedia Americana (international Ed. 1980, vol. 23, at 260) describes the term "rare earth" as "... includ[ing] the 14 elements of the lanthanide series of the periodic table (cerium with atomic number 58 through lutetium with number 71) [and] [i]n addition, lanthanum (no. 57) is often included among the rare-earth elements, and scandium (no. 21) and yttrium (no. 39) are sometimes included--largely because of the difficult of separating them chemically from the lanthanides." As noted in the proposed ruling attached to the CUSTOMS BULLETIN proposal, according to Hawley’s Condensed Chemical Dictionary, Twelfth Edition, Van Nostrand Reinhold Company, New York, NY, 12 CCD 993, rare earth, “. . . Yttrium . . . although not a rare earth element, is found associated with the rare earths and is only separated with difficulty.”
Thus, the meaning of "rare earth" is ambiguous. However, in this regard, we note that the Court of Appeals for the Federal Circuit has stated that "[s]tatutory interpretation ‘is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme--because ... only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.’" (Goodman Mfg., L.P. v. United States, 69 F.3d 505, 510 (Fed. Cir. 1995)). Following the guidance of the Court in Goodman, supra, the distinction between mixtures of rare-earth oxides or chlorides and other than such mixtures, in subheading 2846.90, HTSUS, is clarified by the "remainder of the statutory scheme". That is, heading 2846 refers to compounds or mixtures of "rare-earth metals, of yttrium or of scandium". That is, the heading distinguishes between rare-earth metals and yttrium or scandium. Not only is this consistent with the above common or popular and technical definitions of "rare-earth" and "yttrium", which only "sometimes" include yttrium among the rare-earth metals, it is also consistent with the ENs. That is, EN 28.46 states "[t]his 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)." If we refer to EN 28.05, the distinction is even clearer. That EN states, in part:
Rare-earth metals (the term "rare-earth" applies to their oxides) or lanthanons comprise the elements with atomic numbers ... from 57 to 71 in the periodic system[.] ... This heading also covers scandium and yttrium which resemble the rare-earth metals quite closely ....
Accordingly, we conclude that, 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 (if more than 19% but less than 85% by weight of yttrium oxide equivalent in the former, otherwise in the latter).
HOLDING:
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 (if more than 19% but less than 85% by weight of yttrium oxide equivalent in the former, otherwise in the latter).
EFFECT ON OTHER RULINGS:
NY 856525, NY 855057 and NY 854686 are revoked.
In accordance with 19 U.S.C. 1625(c)(1), this ruling will become effective 60 days after its publication in the CUSTOMS BULLETIN. Publication of rulings or decisions pursuant to 19 U.S.C. 1625(c)(1) does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations (19 CFR 177.10(c)(1)).
Sincerely,
John A. Durant, Director
Commercial Rulings Division