CLA-2 CO:R:C:F 089758 EAB
District Director
U.S. Customs Service
111 West Huron Street
Buffalo, New York 14202
Re: Application for Further Review of Protest No. 0901-0-
700496, dated May 31, 1990, concerning black
polyethylene concentrate; HRL 084242; NYRL 846248;
other coloring matter; pigment; carbon black; plastics;
primary forms; polyesters
Dear Sir:
This is a decision on a protest filed May 31, 1990, against
your decision in the classification of merchandise liquidated
March 2, 1990.
FACTS:
The protestant entered all goods in subheading 3206.49.4000,
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA), a provision for other coloring matter etc., other
coloring matter and other preparations, other preparations based
on carbon black, to be entered free of duty. The merchandise was
reclassified under subheading 3907.99.0050, HTSUSA, a provision
for other polyesters in primary forms, other polyesters, other,
other, and the rate of duty was advanced to 3.1 per kilogram plus
9.0 percent ad valorem.
Identified as a black polyethylene concentrate, the material
is solid pellets, black in color, consisting of 52 percent carbon
black and 48 percent low density polyethylene (LDPE).
ISSUE:
What is the proper classification under the HTSUSA of carbon
black and low density polyethylene coloring preparation?
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.
The Explanatory Notes to the Harmonized Commodity Descrip-
tion and Coding System represent the official interpretation of
the Customs Cooperation Council on the scope of each heading;
although neither binding upon the contracting parties to the
Harmonized System Convention nor considered to be dispositive
interpretations, they should be consulted on the proper scope of
the System.
Heading 3907, HTSUSA, describes in part polyesters in
primary form, which description the subject merchandise clearly
fits.
Heading 3206, HTSUSA, describes in part other coloring
matter and preparations as specified in Note 3, Chapter 32.
That note states that heading 3206 applies to preparations based
on coloring matter of a kind used for coloring any material. It
is a well established principle that a use provision describes
with greater specificity merchandise that may be covered by an eo
nomine provision because the use provision is ordinarily more
difficult to satisfy. We are of the opinion that heading 3206,
HTSUSA, read with Note 3, Chapter 32, is a use provision that
more specifically describes the subject goods than does heading
3907. Additionally, Explanatory Note 32.06(A)(I) states in part
that heading 3206 includes concentrated dispersions in plastics,
used as raw materials for coloring plastics.
Additional U.S. Rule of Interpretation 1(a) addresses
classification of merchandise controlled by use and provides that
the controlling use is the principal use. We find that the
principal use of the subject merchandise is a plastic-based
coloring preparation used in the manufacture of colored plastics.
Pursuant to GRI 3(a), we are of the opinion that the
merchandise is most specifically described in subheading
3206.49.1000, HTSUSA. Goods similar to the merchandise at issue
here have been similarly classified. See HRL 084242 (June 15,
1989) and NYRL 846248 (November 13, 1989).
HOLDING:
Black polyethylene concentrate consisting of carbon black
and low density polyethylene in the form of pellets is classified
under subheading 3206.49.1000, HTSUSA, which provides for other
coloring matter, preparations as specified in note 3 to chapter
32, other coloring matter and preparations, other concentrated
dispersions of pigments in plastics materials.
Articles classified under that subheading for the year 1990
were subject to a general rate of duty of 5.9 percent ad valorem
and a special rate of duty of 4.7 percent ad valorem upon
compliance with all applicable regulations pertaining to the
U.S.-Canada Free Trade Agreement.
You are instructed to deny the protest, except to the extent
that reclassification of the merchandise as indicated above
results in a partial allowance.
A copy of this decision should be attached to the Customs
Form 19 and mailed to the protestant as part of the notice of
action on the protest.
Sincerely,
John Durant, Director