CLA-2 CO:R:C:F 952785 EAB
Area Director
U.S. Customs Service
6 World Trade Center
New York, New York 10048
Re: Application for further review of Protest No. 1001-92-103598,
dated May 22, 1992; pearlescent pigments and preparations
Dear Area Director:
This is a decision on a protest filed May 22, 1992, against
your decision in the classification under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) of merchandise
entered on November 14, 1991 and liquidated on April 17, 1992.
FACTS:
The protestant entered the merchandise described on the
commercial invoices applicable to this decision as colorona
bordeaux, colorona sienna, colorona sienna sparkle, colorona copper
fine, timeron blue red, dichrona YR, dichrona YB, iriobronze
sparkle silver, afflair rutile blue, and black mica, or similar
designations, under subheading 3206.49.50, HTSUSA, a residual
provision for other coloring matter and other preparations. Duty
was claimed at the column one general rate of 3.1 percent ad
valorem.
With the exception of black mica, Customs reclassified the
merchandise under subheading 3206.10.00, HTSUSA, a provision for
pigments and preparations based on titanium dioxide. Duty was
assessed at the column one general rate of 6 percent ad valorem.
Customs reclassified the merchandise described as black mica
under subheading 6814.90.00, HTSUSA, a provision for plates, sheets
and strips or agglomerated or reconstituted mica, whether or not on
a support. Duty was assessed at the column one general rate of 5.3
percent ad valorem.
A memorandum of law with exhibits on behalf of protestant has
been attached to and filed with Customs Form 19 by counsel.
Protestant's Exhibit A lists the quantitative chemical analysis of
each item in issue as well as other pearlescent pigments imported
by the protestant. The exhibit distinguishes what we will refer to
for purposes of this decision five "lines", to-wit: Afflair,
Colorona, Timeron, Dichrona and Iriobronze Pearlescent Pigments.
Exhibit B is identified by counsel as protestant's brochure: Pearl
Lustre - the New Dimension in Color. Exhibit C is identified by
counsel as protestant's brochure: Introduction to Afflair.
From Exhibit A, Afflair rutile blue contains 47 percent mica,
52 percent titanium dioxide and one percent stannic oxide. Black
mica contains 37 percent mica, 6 percent titanium dioxide and 57
percent iron oxide. Other colors in the Afflair line, the
classification of none of which is a part of this decision, contain
varying combinations of the foregoing, e.g. rutile brilliant
silver consists of a 73:26:1 proportion, rutile sparkling silver
consists of an 85:14:1 proportion, rutile green consists of a
46:53:1 proportion, bronze consists of a 66:34 ratio of only mica
and titanium dioxide, rutile red consists of mica 52 percent,
titanium dioxide 47 percent and stannic oxide one percent and red
brown consists of 58 percent mica, 42 percent iron oxide and one
percent stannic oxide.
From Exhibit A, Colorona bordeaux consists of 49-53 percent
mica and 47-51 percent iron oxide; sienna consists of a 54:46
percent ratio of the same mineral and ore; likewise, sienna sparkle
has a sliding ratio of (63-69):(31-37) and copper fine is listed as
(51-57):(43-49), mica to iron oxide. We note especially that all
of the immediately foregoing products are a part of this
classification decision and none contains titanium dioxide.
Continuing from Exhibit A, Timeron blue red consists of mica
at 53-59 percent and titanium dioxide in reverse proportions of 41-47 percent.
Again from Exhibit A, Dichrona YR (yellow red) consists of
mica, 51-57 percent, titanium dioxide, 41-45 percent and iron
oxide, 2-4 percent. In Dichrona YB (yellow blue) we find mica, 48-54 percent, titanium dioxide, 45-49 percent and iron oxide, 1-3
percent.
Finally from Exhibit A, counsel puts forth a "range in
composition of iriobronze pigments" that, for purposes of this
decision, we will average as mica 78 percent, titanium dioxide 16
percent, iron oxide 5 percent and myristic acid 2 percent. The
total average exceeds 100 percent, but we consider the difference
inconsequential.
The products at issue are not mere mixtures; as simply stated
by the protestant in Exhibit B, as a result of the manufacturing
process:
By coating minuscule mica particles with
varying quantities of titanium dioxide, we
obtain interference colors ranging from
silver, through yellow, red, and blue, to
green.
Metallic colors can be produced by combining
mica with other metal oxides such as chrome
(III) oxide or iron (III) oxide. Interesting
gold or brown shades result from the
simultaneous use of titanium dioxide and iron
(III) oxide.
Pearl Lustre - the New Dimension in Color, Exhibit B, p. 8.
From Exhibit C, we note the following:
Afflair (R) Lustre Pigments consist of flat
mica platelets coated with titanium dioxide,
titanium dioxide/iron oxide or iron oxide.
Irregular in shape, the platelets vary in
thickness from 0.1 to .5 microns and range in
length up to 200 microns. The thickness of
each coating is carefully controlled and
varies according to the color. Each
transparent layer creates the lustre or
pearlescent effect.
Introduction to Afflair, Exhibit C, p.1.
ISSUE:
What is the classification under the HTSUSA of pearlescent
pigments?
LAW AND ANALYSIS:
Merchandise imported into the U.S. is classified under the
HTSUSA. 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 otherwise requires, by
the Additional U.S. Rules of Interpretation. The GRIs and the
Additional U.S. Rules of Interpretation are part of the HTSUSA 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 GRI's taken in order.
We agree with the protestant that the merchandise belongs
under heading 3206, HTSUSA; the issue is joined at the subheading
level. Which is to say, at issue is the classification of
"pigments." Oxides of metals such as iron and titanium may be
deemed inorganic pigments. Condensed Chemical Dictionary (Eleventh
Ed.), Van Nostrand Reinhold Company, Pub.
Counsel states that "Neither the HTS nor the Explanatory Notes
define the term 'based on' as it applies to pigments, preparations
and coloring matter. However, the customs courts have held that an
article is 'based on' a particular constituent when that
constituent is the 'fundamental and essential constituent'
component of the article [citation omitted]." Memorandum attached
to Customs Form 19, p. 9.
In view of protestant's own description of its product in
general, See Exhibit B, id., p. 8, supra, and the Afflair (R) line
in particular, See Exhibit C, p. 1, supra, we must find in fact and
are of the opinion that the fundamental and essential constituent
component of the pearlescent pigments that contain titanium dioxide
is the titanium dioxide. The quantitative analyses in counsel's
Exhibit A succinctly corroborate the protestant's announcements
that, by carefully varying the quantity of the inorganic
pigments/s, particularly titanium dioxide, a veritable rainbow of
discrete colors may be obtained. Remarkably, even Afflair rutile
red contains no iron oxide. Varying the amount of mica in the
process clearly effects a change in the pearlescence of the
product, but this is refraction, the bending of light, the effect
of a prism and not the results of pigmentation. We would not
classify a prism as "coloring matter" and we decline to classify
mica as being so. Mica is not a pigment and we find that
pearlescent pigments are not based on mica.
With respect to the product iriobronze sparkle silver, since
"metallic colors can be produced by combining mica with other metal
oxides such as chrome (III) oxide or iron (III) oxide," Pearl
Lustre - the New Dimension in Color, supra, we find that it is
based upon the inorganic pigment iron oxide.
HOLDING:
The protest should be denied.
Pearlescent pigments made from inorganic pigment/s and mica
are classifiable as follows:
Afflair rutile blue, black mica, Dichrona YR (yellow red),
Dichrona YB (yellow blue) and timeron blue red under
subheading 3206.10.00, HTSUSA, a provision for other coloring
matter; preparations as specified in note 3 to this chapter,
other than those of heading 3203, 3204 or 3205; inorganic
products of a kind used as luminophores, whether or not
chemically defined; pigments and preparations based on
titanium dioxide (emphasis added). Merchandise entered under
the foregoing subheading in 1992 was dutiable at the column
one general rate of 6 percent ad valorem.
Colorona bordeaux, sienna, sienna sparkle and copper fine and
Iriobronze silver sparkle under subheading 3206.49.20, HTSUSA,
a provision for other coloring matter; preparations as
specified in note 3 to this chapter, other than those of
heading 3203, 3204 or 3205; inorganic products of a kind used
as luminophores, whether or not chemically defined; other
coloring matter and other preparations; other, preparations
based on iron oxides (emphasis added). Merchandise entered
under the foregoing subheading in 1992 was dutiable at the
column one general rate of 10 percent ad valorem.
A copy of this decision should be attached to the Customs Form
19 and provided to the protestant as part of the notice of action
on the protest.
In accordance with Section 3A(11)(b) of Customs Directive 099
3550-065, dated August 4, 1992, Subject: Revised Protest Directive,
this decision should be mailed by your office to the protestant no
later than 60 days from the date of this letter. Any reliquidation
of the entry in accordance with the decision must be accomplished
prior to mailing of the decision. Sixty days from the date of the
decision the Office of Regulations and Rulings will take steps to
make the decision available to customs personnel via the Customs
Ruling Module in ACS and the public via the Diskette Subscription
Service, Freedom of Information and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division