CLA-2 CO:R:C:F 954611 EAB
U.S. Customs Service
6 World Trade Center
New York, New York 10048
Re: Application for Further Review of Protest No. 1001-93-101726, dated March 26, 1993;
Pergascript Red I-6B; Pergascript Blue I-2R; Pergascript Orange I-5R; coloring matter
and preparations; carbonless paper; ink; EN 32.04; 3215.90; Corporation Sublistatica,
S.A. v. U.S. (CIT 1981); BASF Wyandotte (CIT 1987)
Dear Area Director:
This is a decision on a protest filed March 26, 1993, against your decision in the
classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA)
of merchandise entered on August 28, 1992, and liquidated on December 28, 1992.
The protestant entered the merchandise under subheading 3204.19, HTSUSA, a provision
for synthetic organic coloring matter and preparations based thereon as specified in Note 3 to
Chapter 32, other.
Customs liquidated the merchandise as entered, and collected duties at 15 percent ad
valorem on the Pergascript Red I-6B and Pergascript Orange I-5R (the goods being more
specifically described under subheading 3204.19.4000, HTSUSA) and 20 percent ad valorem on
the Pergascript Blue I-2R (the goods being more specifically described under subheading
The protestant now seeks classification of all of the goods under subheading
3215.90.5000, HTSUSA, a residual provision for ink other than printing ink, other than drawing
ink, dutiable at the column one general rate of 1.8 percent ad valorem.
The merchandise is imported as bulk powder that has been surface treated to maintain a
fine, micro-particle size. It is used to make one of two layers applied to sheets to make
"carbonless" paper, which is then used to manufacture, among other products, credit card slips.
For example, to one substrate is applied a surface treated chemical intended to react with a
"Pergascript" that has been applied to the other substrate. Upon pressure from a ball-point pen,
pencil or impression machine, the surface treatments are crushed, the chemicals react in the
presence of each other, and an permanent image appears on the credit card slip set.
As long ago as 1982, protestant was importing the subject merchandise. For example,
Pergascript Red I-6B was entered by the protestant on March 1, 1982, as a benzenoid dye under
item 410.22 of the Tariff Schedules of the United States (TSUS). Pergascript Blue I-2R was
entered by the protestant on July 10, 1987, as a benzenoid dye under item 410.20, TSUS.
On November 21, 1994, members of this office met with counsel for protestant and a
member of the pigments division of protestant.
Whether Pergascript Red I-6B, Pergascript Blue I-2R and Pergascript Orange I-5R 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.
We note the following:
Carbonless or direct thermal paper contains the ingredients for recreating
an image in special coatings. The coatings, of which there usually are two, may be
on one side of a sheet of paper, or on the bottom and top of adjacent sheets. The
pressure of a pen or office machine penetrates the coatings, producing a chemical
reaction which reproduces the impression of the original. One of the coatings
contains a dye precursor or color former (the "Pergascript") and the other a co-reactor, such as a zincated phenolic resin or phenolic compound. The combination
of these ingredients produces an ink which reproduces the original impression
MEMORANDUM IN SUPPORT OF PROTEST AND REQUEST FOR FURTHER REVIEW
dated March 25, 1993, Law Offices of Counsel for Protestant, at page 2.
Whether the combination of the "Pergascript" and the zincated phenolic resin or phenolic
compound binder produces an ink once the protective coatings on each are crushed to expose and
permit the mixing of the two distinct substances, we do not decide here. Based upon Customs
laboratory analysis as well as protestant's admission through counsel, we are of the opinion,
however, that, since the imported merchandise itself contains no binder and only a colorant that is
surface coated, it cannot be an "ink", not even a "powder ink" of the kind at issue in either
Corporation Sublistatica, supra or BASF Wyandotte, supra.
Since we find that the merchandise is not described by the terms of heading 3215, we are
of the further opinion that classification of this merchandise is not controlled by that part of 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 or printing . . . paper. It is also
used to prepare . . . inks of heading 3215 . . ." EN 32.04(I) at 454. We are of the opinion that
the broad scope of heading 3204 is precisely the circumstance in which GRI 2(a) does not
Although we disagree with the protestant by declining to classify the subject merchandise
as ink, we note that in arguing that heading 3215 is the appropriate heading under which the
goods should be classified, the protestant necessarily puts forth the fact with which we completely
agree, that the goods contain a pigment. In arguing against heading 3204, however, protestant's
counsel asserts that the merchandise cannot be coloring matter or preparations based on coloring
matter in the condition as imported because, "Like a sympathetic ink, its color is latent . . . not
visible." Memorandum, supra, at 4. We note from the scientific literature, particularly The
Condensed Chemical Dictionary, Ninth Edition (Hawley, Ed.), that leuco- or "vat" dyes are "dyes
that can be easily reduced . . . to a soluble and usually colorless leuco form in which they can
readily impregnate fibers." We are not persuaded by counsel that particular visible wavelength
energy absorption is a test for whether a substance is synthetic organic coloring matter or
preparations based thereon.
We are of the opinion that Pergascript Red I-6B, Pergascript Blue I-2R and Pergascript
Orange I-5R are all classifiable under subheading 3204.19, HTSUSA, a provision for synthetic
organic coloring matter and preparations based thereon as specified in Note 3 to Chapter 32,
which legal note provides in part that heading 3204 applies to preparations based on coloring
matter of a kind used for coloring any material.
Pergascript Red-6B, Pergascript Blue I-2R and Pergascript Orange I-5R are classified
under subheading 3204.19.4000, 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: Other,
including mixtures of coloring matter of two or more of the subheadings 3204.11 to 3204.19:
Other: Other: Products described in additional U.S. note 3 to section VI."
Merchandise entered in 1992 under the foregoing provision was dutiable at the column
one general rate of 15 percent ad valorem.
You are instructed to deny the protest except to the extent reclassification of the
merchandise as indicated above results in a net duty reduction and partial allowance.
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.
John Durant, Director
Commercial Rulings Division