CLA-2 RR:CR:GC 962463 MGM
Port Director
U.S. Customs Service
111 W. Huron St.
Buffalo, NY 14202
Re: Protest 0901-98-100318; Primer Paints
Dear Port Director:
This is our decision regarding Protest 0901-98-100318, concerning your classification of certain paint products under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The items of merchandise at issue are two primer paints. One being red in color and the other white. Each of the paints contains polyester, melamine and urethane resins, with polyester predominating by weight. Melamine and urethane are present in generally comparable amounts.
The merchandise was entered on September 3, 1997, under subheading 3208.10.00, HTSUS, which provides for paints based on polyesters. The protestant was notified on September 29, 1997, of a change in the classification of the entered merchandise to subheading 3208.20.00, HTSUS, which provides for paint based on acrylic or vinyl polymers. On June 24, 1998, protestant was again given notice of a change in classification to subheading 3208.90.00, HTSUS, which provides for “other” paints. The entry was liquidated under subheading 3208.90.00, HTSUS, on July 17, 1998. This classification was timely protested on October 14, 1998.
ISSUE:
Is paint which contains polyester, melamine and urethane resins a paint “based on” polyester?
LAW AND ANALYSIS:
Merchandise imported into the U.S. is classified under the HTSUS. 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 requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law.
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. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs.
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See, T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
Heading 3208, HTSUS, provides as follows:
3208 Paints and varnishes (including enamels and lacquers) based on synthetic polymers or chemically modified natural polymers, dispersed or dissolved in a nonaqueous medium; solutions as defined in note 4 to this chapter:
3208.10.00 Based on polyesters
3208.20.00 Based on acrylic or vinyl polymers
3208.90.00 Other
Paints of heading 3208 are dispersions of coloring matter in a vehicle consisting of a binder dispersed or dissolved in a non-aqueous medium. EN 32.08 (A). That is, they have three principal components: colorant, binder and solvent. The colorant gives a paint its characteristic appearance, the binder polymerizes to form a film which allows the colorant to adhere to the surface to which the paint is applied, and the solvent allows paint to remain in liquid form until application. The subheadings of heading 3208 are divided according to the type of binder employed by a paint. In order to fall in subheading 3208.10.00 or 3208.20.00, a paint must be “based on” a certain type of binder. “Based on” is not synonymous with “containing.” See EM Industries, Inc. v. U.S., 999 F.Supp. 1473 (CIT 1998). Rather, to be based on a certain binder, a paint must both contain the binder and have the characteristics of that binder.
The characteristics of binders vary with their chemical composition. Lambourne, Paint and Surface Coatings, Theory and Practice at 28. Certain polyester coatings are noted for their weather-resistance, McGraw-Hill Encyclopedia of Science & Technology, 6th ed., Vol. 14 at 130, while numerous polyurethane coatings are “tough and abrasion-resistant,” McGraw-Hill Encyclopedia of Science & Technology, 6th ed., Vol. 14 at 168. To paraphrase EM Industries, supra, “...there is no dispute that [the polyester binders] are fundamental and essential constituents of the [paints].” However, the other binders (urethane and melamine resins) also contribute significantly to the characteristics of the paint. We note that these paints are bought and sold as specialty paints, containing urethane. Urethane is known for its chip and scratch resistant qualities. As in EM Industries, supra, we conclude that the paints under consideration should be recognized as a separate class of paints from those classified in subheadings 3802.10.00 and 3802.20.00, HTSUS, and, as they are not described in a specific subheading, they are classifiable in the residual provision, subheading 3802.90.00, HTSUS.
HOLDING:
The instant merchandise is classified in subheading 3208.90.00, HTSUS. The protest is DENIED. The liquidated classification remains the same; duty-free treatment is unaffected.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550 065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division