CLA-2 CO:R:C:G 087512 STB
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?
-2-
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.
-3-
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
Commercial Rulings Division