CLA-2 R:C:F 955965 ALS
Area Director of Customs
JFK Area
JFK Airport
Building 77, Room 228
Jamaica, New York 11430
RE: Application for Further Review of Protest 1001-93-106067,
Dated September 1, 1993, Regarding the Classification of
Microlith Yellow 2R-A
Dear Mr. Mattina:
This ruling is on a protest that was filed against your
decision of July 23, 1993, regarding an entry for the above noted
product.
FACTS:
The product under consideration, Microlith Yellow 2R-A, is
imported in bulk powdered form. It has been surface treated to
maintain the fine, micro-particle size necessary for use in
making the final product. The imported product is stated to
consist of colorants and binders or dispersants. It is soluble
in alcohol. The product was entered and liquidated in subheading
3204.17.5090 (now 3204.17.9085) Harmonized Tariff Schedule of the
United States Annotated (HTSUSA), a provision for synthetic
organic coloring matter and preparations based thereon as
specified in legal note 3 to Chapter 32.
The protestant, stating that the product is a concentrated
stain in powder form, seeks reclassification of the product in
subheading 3210.00.0000, HTSUSA, the provision for other paints
and varnishes (including enamels, lacquers and distempers). The - 2 -
protestant notes that the product is a specially prepared pigment
predispersed in resin and developed for printing. The
protestant's publication "Pigments, Pigment Preparations and
Special Dyes (1992)", notes that Microlith-A products are
pigments preparations which consist of specially prepared forms
of high grade organic, classical organic and inorganic pigments
predispersed in an ethyl cellulose carrier resin. It further
notes that they have been developed for the gravure and
flexographic printing inks used in the packaging sector. The
major uses of the product is stated to be woods stains and liquid
inks for packaging. The protestant states that its principal use
in the United States is as stains and that it is made ready for
staining wood by "simply stirring the concentrate into a solvent
or solvents." The importer notes that the imported product is
mixed with 4 different solvents in a varying ratio in a "simple
stirring process" to make the finished product.
ISSUE:
Is the product under consideration a stain for tariff
purposes?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is governed
by the General rules of Interpretation (GRI's) taken in order.
GRI 1 provides that the classification is determined first in
accordance with the terms of the headings and any relative
section and chapter notes. If GRI 1 fails to classify the goods
and if the headings and legal notes do not otherwise require, the
remaining GRI's are applied, taken in order.
Subheading 3204.17.5090 (now 3204.17.9085), HTSUSA, under
which the product was liquidated, covers in pertinent part
synthetic organic coloring matter and preparations based thereon,
particularly synthetic organic coloring matter and preparations
based thereon as specified in legal Note 3 to chapter 32, HTSUSA.
Subheading 3210.00.0000, HTSUSA, as suggested by the protestant,
provides for other paints and varnishes (including enamels and
lacquers and distempters).
The referenced legal note provides, inter alia, as follows:
Headings 3203, 3204, 3205 and 3206 apply also to preparations based on coloring matters...of a kind used
for coloring any material or used as ingredients in the
- 3 -
manufacture of coloring preparations. The headings do
not apply, however, to pigments dispersed in nonaqueous
media, in liquid or paste form, of a kind used in the
manufacture of paints, including enamels (heading
3212), or to other preparations of heading...3210.
Counsel argues that since the principal use of the
preparation in the United States is as a stain it should be so
classified. Noting that the importer's own sales literature
indicates that the product may normally be used for multiple
purposes, a stain and a liquid ink, we disagree with the proposed
conclusion.
Since we find that the product is not described by the terms
of heading 3210, we are of the further opinion that
classification of this product is not controlled by that part of
legal note 3 to chapter 32, which provides that goods of heading
3210 are excluded from classification under heading 3204.
The protestant has suggested that the product is an
unfinished or incomplete wood stain pursuant to GRI 2(a). It
states that the goods formulated therefrom, upon simple dilution,
are principally used as wood stains. We do not agree therewith.
In this regard we note that the Explanatory Note to Rule 2(a)
advises that the rule does not normally apply to Section VI goods
in view of the scope of the headings of that section. Heading
3204 covers, among other article, "other preparations based on
synthetic organic colouring matter of a kind used for colouring
any material or used as ingredients in the manufacture of
colouring preparation." EN 32.04(I)(E). Furthermore, "Synthetic
organic colouring matter may be soluble or insoluble in water.
It has almost completely replaced natural organic colouring,
particularly for dyeing...paper or wood. It is also used to
prepare...colours of headings 32.08 to 32.10..and for colouring
plastics, rubber, waxes, oils, photographic emulsions, etc."
EN 32.04(I) at page 455. We are of the opinion that the broad
scope of heading 3204 is the type of circumstance in which
GRI 2(a) does not normally apply.
We are of the opinion that Microlith A pigment preparations
are classifiable under the provision for synthetic organic
coloring matter and preparations based thereon as specified in
legal note 3 to chapter 32, HTSUSA, which provides in part that
heading 3204 applies to preparations based in coloring matter of
a kind used for coloring any material.
- 4 -
We have concluded that Microlith yellow 2R-A, the subject of
the immediate protest, is a concentrated pigment or a color which
may be dispersed in a variety of vehicles. The vehicles are
formulated, according to the importers brochures and technical
information so that they may be adaptable to a variety of uses in
products such as varnishes, stains, inks, fibers and plastics.
These substrates are, after importation, usually further modified
by the addition of additives, and reformulated to their customers
specifications.
HOLDING:
Microlith A is a coloring preparation classified under
subheading 3204.17.9085, HTSUSA, a provision for synthetic
organic coloring matter, whether or not chemically defined;
preparations as specified in legal note 3 to chapter 32, pigments
and preparations based thereon, other, other, other. Products so
classified are subject to a general rate of duty of 18.6 percent
ad valorem.
Since the classification indicated above is the same as the
classification under which the entry was liquidated, you are
instructed to deny the protest in full.
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 3553-065, dated August 4, 1993, Subject, Revised Protest
Directive, this decision should be provided by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entries in accordance with this decision
must be accomplished prior to the 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, Freedom of Information Act
and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division