CLA-2 CO:R:C:F 952891 EAB
U.S. Customs Service
6 World Trade Center
New York, New York 10048
Re: Application for further review of Protest No. 1001-92-103316,
dated May 11, 1992; sicoplast red 32-1720; pigment brown 31;
pigment yellow 119; pigment red 178; GRI 3(b)
Dear Area Director:
This is a decision on a protest filed May 11, 1992, against
your decision in the classification of merchandise entered on
October 23, 1991 and liquidated on May 8, 1992.
The protestant entered the merchandise, consisting of 330
pounds of sicoplast red 32-1720, under subheading 3206.49.5000,
Harmonized Tariff Schedule of the United States Annotated (HTSUSA),
a provision for other coloring matter preparations as specified in
Note 3 to Chapter 32, other coloring matter and other preparations,
other, other; duty was claimed at the column one general rate of
3.1 percent ad valorem.
Customs reclassified the merchandise under subheading
3204.17.1040, HTSUSA, a provision for synthetic organic coloring
matter preparations as specified in Note 3, Chapter 32,
preparations based thereon; duty was assessed at the column one
general rate of 8.3 percent ad valorem.
The merchandise is a pigment preparation containing 70 percent
by weight of pigment brown 31 [also known as pigment yellow 119],
an inorganic pigment based on zinc oxide, and 30 percent by weight
of color index pigment red 178, a synthetic organic pigment. The
cost of the organic pigment red 178 is approximately ten-fold that
of the inorganic pigment brown 31. The tinctorial strength of the
organic pigment red 178 is twenty times more so than that of the
inorganic pigment brown 31. The mixture itself is red and the
protestant has described the function of the pigment brown 31 to
be that of an opacifying agent; i.e., it is present in the mixture
because of its "hiding characteristics."
What is the classification under the HTSUSA of sicoplast red
32-1720, a pigment mixture consisting of 70 percent by weight of
inorganic pigment brown 31, also known as pigment yellow 119, and
30 percent by weight of organic pigment red 178?
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.
When effected, GRI 3(b) requires that mixtures will be
classified as that component which imparts the essential character
to the merchandise.
We consider four points on this. First, and quite obviously,
since the product is "coloring matter", the color of the mixture;
second, the percentage weights of the component materials; third,
the costs of the component materials; fourth, the function of the
components relative to the function of the mixture.
We find that the essential character of sicoplast red 32-1720
is imparted by the pigment red 178. The mixture is red coloring
matter and although the pigment brown 31/pigment yellow 119 is 70
percent by weight of the mixture, the cost of the pigment red 178
is approximately 91 percent of the total cost of the component
materials. Finally, the tinctorial strength of the pigment red is
twenty times greater than that of the pigment brown/yellow;
whatever the "hiding characteristics" of the pigment brown/yellow
are, they do not hide the red of sicoplast red 32-1720.
We are of the opinion that sicoplast red 32-1720 is properly
classifiable under heading 3204.
The protest should be denied.
Sicoplast red 32-1720, a pigment mixture consisting of 70
percent by weight of inorganic pigment brown 31, also known as
pigment yellow 119, and 30 percent by weight of organic pigment red
178 is classifiable under subheading 3204.17.1040, 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:
pigment red 178.
Merchandise entered in 1991 under the foregoing provision was
dutiable at the column one general rate of 8.3 percent ad valorem.
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.
John Durant, Director