CLA-2 RR:TC:FC 958436 ALS
Port Director of Customs
U.S. Customs Service
610 S. Canal St.
Chicago, IL 60607
RE: Application for Further review of Protest 3901-95-102741,
dated November 9, 1995, Regarding Certain
Acrylic Resin Pigment Pastes
Dear Mr. Roster:
This ruling is in reference to a protest that was filed
against your decisions of August 18, 1995, concerning the
classification of certain acrylic resin pigment pastes.
The products are described by counsel as water-based
preparations consisting primarily of acrylic resin colored with
pigments. The products are, after importation, mixed with
acrylic, melamine, or urethane resin and various additives, e.g.,
a flow agent and an anticratering agent, to impart the desired
characteristics. The mixed products are used as paints for
automobiles. The products have been identified as NWB 230 Maroon
R-6424 Paste, NWB 230 Violet RL Paste, and NWB 230 Magenta 343D
Paste. Entries covering these products have been liquidated,
respectively, under subheadings 3204.17.9030, Harmonized Tariff
Schedule of the United States Annotated (HTSUSA), 3204.17.9040,
HTSUSA, and 3204.17.6085, HTSUSA.
Counsel has suggested that the products should alternatively
be classified in subheading 3204.17, HTSUSA, as synthetic organic
coloring material and preparations based thereon, 3206.49, HTSUSA
as other coloring matter, subheading 3906.90, HTSUSA, as acrylic
polymers in primary form, or subheading 3209.10.0000, HTSUSA, as
paints based on acrylic polymers in aqueous solutions.
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What is the classification of the subject acrylic pastes?
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.
In considering the proper classification of the imported
products, three acrylic resin pigment pastes, we note that they
are described as consisting primarily of modified acrylic resin
and pigment in a water base, together with small amounts of
additives including ethylene-series glycol ethers and/or their
acetates. Counsel states that the products contain all the
constituent elements of a paint. Counsel notes that the imported
pigment pastes are, subsequent to importation, processed by his
client's principal customers, into a finished paint product,
through a mixing operation in an agitator tank. He notes that
additional resin is added to extend the product as is water, as a
solvent, to adjust the viscosity of the mixture. He further
notes that, depending on the type of finish and application
desired, the customer may also mix in other additives which,
among other things, may include, e.g., a wetting agent, a flow
agent, an antifoaming agent.
Counsel has suggested that the products should be classified
in subheading 3209.10.0000, HTSUSA, as a paint based on acrylic
polymers in aqueous solutions. He alternatively suggests that
the products should be classified in subheadings 3204.17, HTSUSA,
which covers synthetic organic coloring material and preparations
based thereon; subheading 3206.49, HTSUSA, which covers other
coloring matter: preparations as specified in note 3 to Chapter
32, HTSUSA, other than those of 3203, 3204 or 3205, and not
elsewhere specified in heading 3206; subheading 3906.90, HTSUSA,
which covers acrylic polymers in primary forms.
We have considered each of the proposed subheadings. In
regard to classification in subheading 3209.10.0000, HTSUSA,
which embraces paints in an aqueous medium, we note that the
products are organic coloring matter dispersed in plastics which
will, subsequent to importation, be made into paints for
automobiles. It is only after additional resins, additives and
water are added to the imported products that they can be used
for their intended purposes. We do not agree with counsel's
conclusion that each product has all of the constituent elements
of a paint.
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The Customs laboratory has analyzed the products several
times and concluded that they are only one part of a two part
system, in which the second part contains a significant part of
the finished paint. Counsel disagreed with that conclusion and
requested that the laboratory test the actual product in the
manner suggested by the importer. We tested the product in a
manner that was consistent with the importer's instructions. The
test showed that the pigment pastes formed a film with a
significant amount of air bubble imperfections. However, the
contiguous sections of the film not containing the imperfections
allowed a small amount of light to filter through and, therefore,
cannot be considered opaque. It was suggested that the air
bubble imperfections were due to the absence of the second part
of the paint formulation. The laboratory noted that only one
layer of pigment paste, as instructed by the importer, was
applied but that in most automobile applications, a large number
of layers of paint are applied to the surface. The laboratory
felt the pigment paste would form an opaque film with the
application of 3 or 4 layers. Also, according to counsel, the
second part of the paint formulation, which is domestic origin
and is mixed with pigment paste prior to application, contains
We also do not believe that the subject products could be
considered unfinished or incomplete pursuant to GRI 2(a) although
the processing subsequent to importation is described as simple.
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.
We next considered the alternative subheadings suggested by
counsel. Subheading 3206.49, HTSUSA, would not cover the instant
products which have 100 percent organic coloring material. That
subheading embraces only inorganic pigments or a mixture of
organic and inorganic pigments in which the inorganic pigments
are the essential character.
In regard to the possible classification of the products
under subheading 3906.90, HTSUSA, which covers plastics in
primary form, we agree that the products may be plastic in
primary form. However, we believe that it is more specifically
provided for in heading 3204, HTSUSA. That heading embraces
synthetic organic coloring matter as well as preparations as
specified in legal note 3 to chapter 32. That note states
"Headings 3203, 3204, 3205, and 3206 apply also to preparations
based on coloring matter...of a kind used for coloring matter of
a kind used for coloring any material or used as ingredients in
the manufacture of coloring preparations." The instant products
are preparations of a kind used as ingredients in the manufacture
of coloring preparations. In addition, the general Explanatory
Notes (EN) to chapter 39, which reflects the opinion of the
international classification experts provides that the chapter
(a) Concentrated dispersions of coloring matter in plastics
having the character of products of Chapter 32.
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The instant products are coloring matter in plastics having
the characteristics of Chapter 32. They do not have the
character of chapter 39 since they will not be formed into
plastic articles via molding, casting, extruding, rolling or
other processes into shapes which are retained on the removal of
the external influence.
Even if heading 3906, HTSUSA, was considered along with
heading 3204, the latter heading would be preferred pursuant to
GRI 3(a) since it gives the most specific description. In other
words synthetic organic coloring matter is more specific than
acrylic polymers in primary form.
We also considered the possibility of classification of the
products in subheading 3824.90.28, HTSUSA, as other mixtures
containing by weight of more the 5 percent aromatic substances.
While it appears that the acrylic polymer in the pigment paste
may act as more than a mere vehicle for the pigment, there is no
documentation establishing that the acrylic polymer acts as
something more than a mere vehicle for the pigment. Accordingly,
we are unable to draw a conclusion as to the appropriateness of
so classifying the products.
We have, thus, concluded that the products under
consideration should be classified in heading 3204, HTSUSA. The
relative subheading will be dependent on the color of the
individual product and the applicability of additional U.S. note
3 to section VI, HTSUSA.
Acrylic resin pigment pastes are classifiable in heading
3204, HTSUSA, and are further classifiable therein based on their
color. Specifically, the products NWB 230 Maroon R-6424 Paste,
230 Violet RL Paste and NWB 230 Magenta 343D Paste, based on the
applicability of additional U.S. Note 3 to section VI, HTSUSA,
are classifiable in subheading 3204.17.6085, HTSUSA and is
subject to a general rate of duty of 14.2 percent ad valorem.
Since reclassification of the products as indicated above
will result in a lower rate of duty than the liquidated rate as
to some of the products, you are instructed to deny the protest,
except to the extent reclassification of the products results in
a partial allowance.
A copy of this ruling 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(1)(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 entry in - 5 -
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
Ruling Module in ACS and the public via the Diskette Subscription
Service, Freedom of Information Act and other public access
John Durant, Director
Commercial Rulings Division