CLA-2 R:C:F 956158 EAB
Area Director
U.S. Customs Service
6 World Trade Center
New York, New York 10048
Re: Application for further review of Protest No. 1001-3-107896, dated November 10, 1993; Unisperse-PI; "Unisperse Blue B-PI," "Unisperse Red FBN-PI" and "Unisperse Red RBS-PI;" Corporation Sublistatica, S.A. v. U.S. (CIT 1981); BASF Wyandotte v. U.S. (CIT 1987)
Dear Area Director:
This is a decision on a protest filed November 10, 1993, against your decision in the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of merchandise entered in 1993 and liquidated August 13, 1993.
FACTS:
The protestant entered the merchandise under subheading 3204.17, HTSUSA, a provision for synthetic organic coloring matter, etc.
Customs liquidated the merchandise as entered and collected duties at 15 percent and 20 percent, as applicable.
The protestant now seeks classification of all goods under subheading 3215.19.00, HTSUSA, a provision for printing ink other than black printing ink, dutiable at the column one general rate of 1.8 percent ad valorem.
Technical literature was submitted by the protestant as well as by counsel for the protestant as exhibits to the Memorandum in Support of Protest and Request for Further Review. From the protestant's "1992 Pigments, Pigment Preparations and Special Dyes" widely distributed marketing booklet, at page 24, we learn that "Unisperse-PI colors are highly concentrated pigment pastes developed for modern aqueous printing inks. They are free of binder and glycol . . . ." There accompanies this general description a chart that sets out the Product Name, Chemical Type, CI No., CI Generic Name and major and potential uses of the finished pigment preparations. Specifically, the major use of "Unisperse-PI" preparations is identified to be in the production of aqueous liquid inks; the other potential use is identified to be in the production of aqueous paints at the trade sales level.
ISSUE:
Whether the imported goods used to manufacture protestant's products known as "Unisperse-PI" pigment preparations are classified under the HTSUSA as synthetic organic coloring matter and preparations based thereon in heading 3204 or as ink in heading 3215.
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 GRIs taken in order.
The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System represent the official interpretation of the Customs Cooperation Council on the scope of each heading and, 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 3204 covers in pertinent part synthetic organic coloring matter and preparations based thereon, particularly synthetic organic coloring matter and preparations based thereon as specified in note 3 to chapter 32.
Heading 3215 covers ink/s.
Legal Note 3, Chapter 32, HTSUSA provides, inter alia, as follows:
Headings 3203 [-] 3206 apply also to preparations based on coloring matter . . . of a kind used for coloring any material or used as ingredients in the 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 . . . 3215.
Protestant argues in the alternative for heading 3215 by claiming that the goods are not classified under heading 3204 because they are ink as a matter of law and in fact, or that the goods are ink by reason of legal note 3, chapter 32, or that they are ink by reason of GRI 2(a), which essentially directs, a priori, that if the imported article cannot be classified by reason of GRI 1 because it is unfinished, then it shall be classified as the finished article so long as in its condition as imported the unfinished article has the essential character of the finished article.
Liquid ink consists of three components, namely colorant, either pigment or dye, binder and solvent. See Corporation Sublistatica, S.A. v. United States. 511 F. Supp. 805, 808-809 (CIT 1981). As long as it is present in the mixture of colorant and binder, even a minimum amount of solvent will support the conclusion that merchandise is ink. See BASF Wyandotte Corp. v. United States. 674 F. Supp. 1477, 1480-1481 (CIT 1987). Dry mixtures of only coloring matter and binder, but no solvent, may be inks, i.e., powder ink, for purposes of tariff classification. Corporation Sublistatica, supra.
Based upon protestant's marketing description of the finished "Unisperse-PI" pigment preparations, we find that the imported merchandise itself contains no binder, such that it cannot be an "ink", not even a "concentrated ink" of the kind at issue in either Corporation Sublistatica, supra or BASF Wyandotte, supra.
We find that classification of this merchandise is not controlled by legal note 3 to chapter 32, which provides that goods of heading 3215 are excluded from classification under heading 3204.
Finally, we do not accept the GRI 2(a) option. Paragraph III of 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 articles, "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 preparations." 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 matter, particularly for dyeing . . . paper or wood. It is also used to prepare . . . inks of heading 3215, and for coloring plastics, . . . etc." EN 32.04(I) at 455. We are of the opinion that the broad scope of heading 3204 is precisely the circumstance in which GRI 2(a) does not normally apply.
We are of the opinion that the imported goods were properly classified under subheading 3204.17, HTSUSA.
HOLDING:
You are instructed to deny the protest in full.
"Unisperse Blue B-PI," "Unisperse Red FBN-PI" and "Unisperse Red RBS-PI" are classified under subheading 3204.17, HTSUSA, a provision 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: Synthetic organic coloring matter and preparations based thereon as specified in note 3 to this chapter: Pigments and preparations based thereon: [etc.]"
Merchandise entered in 1993 under the foregoing provision was dutiable at the column one general rate of 15 and 20 percent ad valorem, as applicable.
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 this decision must be accomplished prior to your mailing of this decision to the protestant. Sixty days from the date of this 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 Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division