CLA-2-CO:R:C:F 953106 K
TARIFF No.: 3204.19.40
John H. Heinrich
District Director
Los Angeles District
300 S. Ferry Street, Terminal Island
San Pedro, California 90731
RE: Application For Further Review of Protest No. 2704-92-104269;
Chromicolor Plastic Concentrates
Dear Sir:
The following is our decision in response to your referral
dated May 24, 1993, of the request for further review of the above-
referenced protest.
FACTS:
A consumption entry covering Chromicolor Plastic Concentrates,
was liquidated on July 24, 1992, under the provisions for synthetic
organic coloring matter, other pigments, subheading 3204.17.3090,
Harmonized Tariff Schedule of the United States (HTSUS), with duty
at 15 percent ad valorem and under subheading 3204.17.5090, with
duty at 20 percent ad valorem. A timely protest under 19 U.S.C.
1514 was filed on October 20, 1992, requesting reliquidation under
other, subheading 3204.90.00, with duty at 5.9 percent ad valorem.
On October 20, 1993, under section 177.2 of the Customs
Regulations, the protestant, through counsel, requested a binding
classification ruling for the merchandise covered by the protest.
Information concerning the chemical composition of Chromicolor
Plastic Concentrates was submitted which indicated that they
contained leuco dye, wax, resin and polyethylene resin. The ruling
request and an additional submission dated February 18, 1993, are
considered as part of the protest file.
The concentrates, after importation, are used to color various
plastic articles such as toys, baby bottles, etc., by
introducing the concentrates into the molds for the various
products. The plastic articles change colors with the application
of heat. Samples of such articles were submitted.
However, samples of the concentrates in their condition as imported
were not submitted.
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ISSUE:
The issue is what is the correct classification of Chromicolor
Plastic Concentrates in their condition as imported containing a
dye for its coloring ingredient.
LAW AND ANALYSIS:
Heading 3204, HTSUS, provides for synthetic organic coloring
matter, whether or not chemically defined; preparations as
specified in note 3 to this chapter based on synthetic organic
coloring matter; synthetic organic products of a kind used as
fluorescent brightening agents or as luminophores, whether or not
chemically defined. Subheadings 3204.17.30 and 3204.17.50, provide
for other synthetic organic coloring matter and preparations based
thereon as specified in note 3 of the chapter, of pigments. The
chemical composition of the concentrates reveals that they contain
a dye not a pigment. Accordingly, we conclude that the
concentrates are not classified as pigments under subheadings
3204.17.30 and 3204.17.50.
The position of the protestant is that the concentrates are
more than just synthetic organic coloring matter and preparations
based thereon and are therefore classifiable as synthetic organic
products under "other", subheading 3204.90.00, with duty at 5.9
percent ad valorem. We do not agree.
The various synthetic organic coloring matter covered by
heading 3204 are provided for in the subheadings which follow with
luminophores falling within the last other provision, subheading
3204.90.00. There are no other products described in heading 3204
that may be classifiable in subheading 3204.90.00 except
luminophores. The concentrates are not luminophores and are not
classifiable under other, subheading 3204.90.00 as claimed by the
protestant.
The General Rules of Interpretation (GRI), HTSUS, set forth
the manner in which merchandise is to be classified under the
tariff. 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 taken in order. We are satisfied
that the classification of the concentrates at issue is governed
by GRI 1. When GRI 1 is applicable, we have no recourse to the
remaining GRI such as GRI 3(b) and essential character.
Subsection 3204.19.40, provides for other products described
in additional U.S. note 3, section VI, Chapter 32 (of a kind used
for coloring any material or used as ingredients in the manufacture
of coloring preparations), not provided for in the preceding
subheadings of heading 3204. The concentrates are synthetic
organic coloring matter used for coloring plastic
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materials and as such, they are classifiable under other,
subheading 3204.19.40, HTSUS, with duty at the rate of 15 percent
ad valorem.
HOLDING:
Chromicolor Plastic Concentrates containing leuco dye, of a
kind used for coloring any material or used as ingredients in the
manufacturing of coloring preparations, are classified under other,
subheading 3204.19.40, HTSUS, with duty at the rate of 15 percent
ad valorem.
You are instructed to deny the protest in part and to allow
the protest in part on the basis of this decision as follows.
The entry for part of the merchandise was liquidated under
subheading 3204.17.30, HTSUS, at 15 percent ad valorem. For this
merchandise, the protest should be denied and reliquidated with
the correct classification under subheading 3204.19.40, HTSUS, with
no change in duty.
The entry for part of the merchandise was liquidated under
subheading 3204.17.50, HTSUS, with duty at the rate of 20 percent
ad valorem. The protestant should have the benefit of this
decision, with reliquidation at the correct classification under
subheading 3204.19.40, HTSUS, with duty at the rate of 15 percent
ad valorem. A copy of this decision should be attached to Customs
Form 19, Notice of Action, to be provided to the protestant.
In accordance with Section 3A(11)(b) of Customs Directive 099
3550-065, dated August 4, 1993, 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
Rulings Module in ACS and the public via the Diskette Subscription
Service, Lexis, Freedom of Information Act and other public access
channels.
Sincerely,
John Durant, Director
Commercial Rulings Division