CLA-2: RR:CR:GC 966063 DBS

Mr. Alexander H. Schaefer
Crowell & Moring LLP
1001 Pennsylvania Ave., NW
Washington, DC 20005

RE: Printing ink; Pro-JetTM Fast Yellow 2 RO Feed color preparation; HQ 962365, HQ 962918 and HQ 964191 revoked.

Dear Mr. Schaefer:

On April 28, 2000, this office issued HQ 962365, our decision on the Application for Further Review of Protest # 1101-98-100179, which reclassified a color preparation for ink jet printers as a printing ink under heading 3215, Harmonized Tariff Schedule of the United States (HTSUS). We recently issued HQ 965614 (copy enclosed) and HQ 965615, dated September 30, 2002, to you on behalf of your client, Avecia Inc. (“Avecia”), who filed Protest # 1101-98-100179 on products substantially similar to the product at issue in the protest. Those products were determined to be classifiable not as printing inks, but as color preparations of heading 3204, HTSUS. In light of this outcome, we have reconsidered HQ 962365 and determined the classification to be incorrect.

HQ 962918, dated April 28, 2000, answering the Application for Further Review of Protest # 1401-98-100063, and HQ 964191, dated May 24, 2000, answering the Application for Further Review of Protest # 1001-99-102017, addressed the identical product, imported at different ports. Copies of this letter will be forwarded to all three ports.

Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of the above identified ruling was published on January 2, 2003, in the Customs Bulletin, Volume 37, Number 1. Three comments opposing the proposal were received in response to the notice. The essence of the arguments and Customs response are included in the LAW AND ANALYSIS portion of this ruling. The proposed ruling was published as HQ 966036. That ruling number is incorrect. The correct ruling number is HQ 966063, as reflected above.


The imported product, “Pro-JetTM Fast Yellow 2 RO Feed” (“Fast Yellow 2”), consists of an anionic water-soluble dye and certain additives in an aqueous medium made up of water and organic solvent. It is used in ink jet printing. Ink jet ink is distinguishable from traditional ink by its purity. It cannot contain extraneous material that may clog the fine printhead nozzles of an ink jet printer. The instant mixture contains no binder.

Avecia’s website advertises the Pro-JetTM line of products, including “Fast Yellow 2 liquid” (the imported product in its marketable form), as colorants. The “Manufacturing & Quality” section of the site states that most of Avecia’s ink jet colorants “come in ready-to-use, aqueous liquid form, for ink preparation.” “Fast Yellow 2 liquid” is advertised as being in “ready-to-use” form.

The “Technologies” section states that Avecia has been developing novel colorants and other ink components for aqueous ink jet inks for applications in commercial print, graphic arts and wide format, packaging and labels. Much of Avecia’s technology is proprietary. Not only are their colorants proprietary, including the instant patented product (Patent # 5,374,301, issued December 20, 1994, entitled “Inks Suitable for Use in Ink Jet Printing”), but also additive technology for dye technology, dispersents and dispersion technology for pigments, and resins, polymers and additives for formulation [of ink].

In the proposed version of this ruling, it was stated that this product did not have a binder because “after the dye mixture penetrates ink jet media (plain paper or special media), elements present in the mixture cause it to “lock” into plain paper or bond to special media by interacting with the chemical qualities of that substrate.” Additional research, which will be discussed further in the LAW AND ANALYSIS section of this ruling, has shown that while this product may bind to media without “traditional binders,” binders serve several important functions in ink jet ink, and are part of the common formulation of ink jet ink.

A sample of “Fast Yellow 2” was provided to the Customs laboratory in conjunction with two forms (liquid and paste) of the product at issue in HQ 965615. Lab analysis showed that the sample of “Fast Yellow 2” was substantially similar to those in the aforementioned prospective rulings issued by this office. However, the other products were imported in a concentrated paste form, while counsel for Avecia stated that “Fast Yellow 2” is in liquid form and is not concentrated. It is unknown if the sample was in its condition as imported, or in its condition as sold to the end user.


Whether “Fast Yellow 2” is a preparation based on a dye of heading 3204, HTSUS, or a printing ink of heading 3215, HTSUS.


In the proposed version of this ruling, the LAW AND ANALYSIS section of HQ 965614 was incorporated by reference. In light of additional research in order to address the comments received in response to the proposed ruling, the LAW AND ANALYSIS of HQ 965614, and thus of the final HQ 966063, must be expanded. However, the analysis leads to the same conclusion reached in HQ 965614 and the proposed HQ 966063. Thus, the HOLDING remains the same.

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that articles are to be classified by the terms of the headings and relative Section and Chapter Notes. For an article to be classified in a particular heading, the heading must describe the article, and not be excluded therefrom by any legal note. In the event that goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

3204 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:

3204.14 Direct dyes and preparations based thereon:

3204.14.30 Other

* * * 3215 Printing ink, writing or drawing ink and other inks, whether or not concentrated or solid: Printing ink:

3215.19.00 Other

Note 3 to chapter 32, HTSUS, provides, in pertinent part, that “[h]eadin[g] 32.04…appl[ies] also to preparations based on colouring matter …of a kind …used as ingredients in the manufacture of colouring preparations. The headings do not apply, however…to other preparations of heading 32.07, 32.08, 32.09, 32.10, 32.12, 32.13 or 32.15. The EN for subheadings 3204.11 to 3204.19 states that the synthetic organic coloring matter and preparations based thereon are subdivided on the basis of application or use. The EN describes direct dyes, in pertinent part, as, “water-soluble anionic dyes which, in aqueous solution in the presence of electrolytes, are substantive to cellulosic fibres …used for dyeing…paper.”

The instant product is described by its importer as a water-soluble anionic dye in an aqueous solution that is substantive to cellulosic fibers used for dying paper and other media used in ink jet printing. Avecia calls its line of ink jet products, including “Fast Yellow 2,” colorants or chromophores. A colorant is a recognized, common term used in the ink industry as well as by the courts (see below) as a component of printing ink. See The Printing Ink Manual, Fifth Edition, 684 (1993); Hue P. Le, “Progress and Trends in Ink-jet Printing Technology,” Journal of Imaging Science and Technology, Vol. 42, No. 1 (Jan/Feb 1998); Martin C. Jürgens, “Preservation of Ink Jet Hardcopies,” Capstone Project, Cross-Disciplinary Studies, Rochester Institute of Technology (August 27, 1999); Peter Gregory, “Ink jet printing: joining the jet set,” Proceedings RMS, Vol. 36/3, (September 2001). Colorant is an ingredient used in the manufacture of ink jet ink, a coloring preparation (printing ink). That the product which matches the description in the ENs for direct dyes may contain additives simply means that it is a preparation based on a direct dye. Thus, the product clearly fits the terms of Note 3 to chapter 32, HTSUS. According to GRI 1, it is classifiable as a preparation of heading 3204, HTSUS.

With respect to printing ink of heading 3215, HTSUS, there are no relevant section or chapter notes. However, the Court of International Trade concluded that inks contain colorants, binders and solvents. See BASF Wyandotte Corp. v. United States, 11 C.I.T. 652, 674 F. Supp. 1477 (CIT 1987), aff’d 855 F.2d 852 (CAFC 1988), citing Corporation Sublistatica, SA v. United States, 511 F. Supp. 805, 809 (CIT 1981) (hereinafter Sublistatica). Additionally, the ENs describe printing ink as follows:

(A) Printing inks (or colours) are pastes of varying consistency, obtained by mixing a finely divided black or coloured pigment with a vehicle. The pigment is usually carbon black for black inks and may be organic or inorganic for coloured inks. The vehicle consists of either natural resins or synthetic polymers, dispersed in oils or dissolved in solvents, and contains a small quantity of additives to impart desired functional properties. …

These products are generally in the form of liquids or pastes, but they are also included in this heading when concentrated or solid (i.e., powders, tablets, sticks, etc.) to be used as inks after simple dilution or dispersion.

It is a maxim of customs law that tariff provisions were written for the future. See, e.g., Borneo Sumatra Trading Co., Inc. v. United States, 311 F. Supp. 326, 338-39 (Cust. Ct. 1970). All of the comments received in response to the proposed revocation raised this point, urging that often-advancing ink jet products should be encompassed in heading 3215, HTSUS. Additionally, in the initial Application for Further Review, the importer argued that because of this maxim, the three-component standard of Sublistatica should not be strictly applied. We agree with the latter argument but to a different end. Ink jet technology is specific to ink jet printing and did not exist at the time of Sublistatica. For a product to be ink jet ink, it requires certain other components.

In HQ 962365, the holding turned on whether, under Sublistatica, a product lacking a binder could be classifiable as a printing ink of heading 3215, HTSUS. We held that it was classifiable as ink because the product could bind to the media without binder. However, the highly-regarded Printing Ink Manual, which added a chapter to its fifth edition dedicated to ink jet inks, states that while ink jet ink may have many formulations, it may be simply described as consisting of a solvent blend, colorant, binder and additives. Id. at 684. Binders not only serve to bind the colorant and provide adhesion to the surface, but binders control viscosity, promote droplet formation, and are responsible for other properties in the application of the ink. See id. at 686.

Other sources vary on the inclusion of binder as a component of ink jet ink. In one publication, a table illustrating water-based ink-jet ink composition lists deonized water, water soluble solvent, dye or pigment, surfactant, biocide, buffer and other additives. See Le, supra. Another source states that ink jet inks must fulfill a long list of contradictory requirements but can generally be defined as a mixture of a colorant in a vehicle, either water- or solvent-based. See Jürgens, supra. However, that source also lists binder as a typical ingredient of ink jet ink. While acknowledging that a polymer binder may form a film which can clog the printheads, Jürgens states that it can be avoided with a careful choice of solvent. See id.

Jürgens explains that polymer binders may also serve as mordants. Mordants anchor the colorant to the substrate, making water soluble dyes waterfast. Mordants other than polymer binders include chemical compounds that have an affinity for both the dye and the substrate, or added amine groups to make the dye cationic (i.e., positively charged ions will move towards a negatively charged electrode). See id; for definition of “cationic,” see generally Merriam-Webster’s Collegiate Dictionary, Tenth Edition (2001).

In Avecia’s submissions addressing why the product does not need binder, only the matter of dye binding to media was discussed. Avecia’s description of how additives in the product serve to bind it to media is the same manner in which Jürgens explains mordants. As described above, binder serves many important functions in ink jet ink, only one of which is binding ink to media. In addition, one of the additives which Avecia states aids in binding (the specific details of which are confidential) is a salt. However, according to The Printing Ink Manual, the most important and essential additive to ink jet inks is the salt because it provides the electrical conductivity for charging the droplet of ink. While it may aid in binding, as Avecia states, it is not the common purpose of salt in ink jet ink. And, as we have stated, colorant alone can bind to media, but that does not make it an ink.

Finally, Avecia’s own Peter Gregory states that a typical ink jet ink is composed of water soluble dye, water, humectant, surfactant and penetrant. See Gregory, supra. He explains that the best ink jet colorants are anionic water-soluble dyes because they have good color fastness, reliablity, safety and high thermal stability, all terms Avecia uses in its website to describe the instant product. According to Gregory, the first types of ink jet dyes had brilliant color but poor light fastness, a problem Avecia has worked to correct with azo dyes and copper phthalocyanine dyes, which have superior light fastness. See id.

Again, the terminology Avecia uses to advertise these products (color fastness, light fastness, etc.) are associated with colorants. Colorants are an ingredient of ink, and while a colorant will bind to media (as all dyes will to some degree or another), colorant is not an ink for purposes of tariff classification. Moreover, “Fast Yellow 2” liquid product is not covered in the description of printing inks in the ENs for heading 3215, HTSUS. Nor is it dedicated to a specific use within the realm of ink jet printing.

In HQ 965916, dated August 24, 1995, we noted that, among other reasons, a product called Irgalite®, which is imported in bulk powder form, was not classifiable as a printing ink of heading 3215, HTSUS, because it was not dedicated to a specific use with a specific substrate, but may require the addition of any number of solvents, additives, or other components. Thus, we stated, it constituted something other than “simple dilution.” EN 32.15. While not addressing the EN to heading 3215, HTSUS, directly, we have similarly held other color preparations that were used in various ink applications to be classifiable in heading 3204, HTSUS, and not in heading 3215, HTSUS,. See HQ 953655, dated March 3, 1995; HQ 956158, dated July 27, 1995; HQ 956976, dated March 7, 1995. Similarly, in HQ 965614 and HQ 965615, we stated “Pro-JetTM Fast Cyan 2 Stage” (“Cyan 2”) and “Pro-JetTM Fast Cyan 1 Press Paste,” in their respective conditions as imported required more post-importation processing than “simple dilution or dispersion.” EN 32.15. We also applied this to “Fast Yellow 2,” which raises several points that must be addressed.

One commentor argued that “Fast Yellow 2” need not be dedicated to a particular type of ink jet printing, but simply ink jet printing as a whole. We disagree. There are two categories of ink jet printing, continuous ink jet (CIJ) and drop on demand (DOD). Within each category there are various types of ink jet applications, each requiring different functions. The range of applications for CIJ are complex and diverse, resulting in a vast array of inks formulations. See The Printing Ink Manual, 689. The physical and chemical properties required of a CIJ ink are highly demanding. See id. at 679. Thus, the additives, which impart specific functional properties, are vital to the ink formulation, though they may only comprise a very small percentage of the ink. See id at 687. By including “…and contains a small quantity of additives to impart desired functional properties” in the description, the ENs to heading 3215, HTSUS, support this.

As with CIJ, there are several DOD applications. Each DOD process requires a different formulation of ink jet ink, such as piezo and bubble jet inks, which are generally used in office printing applications, valve jet inks used in industrial applications, and hot melt inks, which are solid at room temperature and generally consist of colorant and a polymer blend vehicle. Whereas in Tomoegawa USA, Inc. v. United States, 681 F. Supp. 867, 874 (CIT 1988), aff’d in part and vacated in part, 861 F.2d 1275 (CAFC 1988), where the court held that although the imported toner was more than a dye or color because it was “of a particular kind and is prepared for the particular process of electrophotography,” the instant product is not limited to a particular process of ink jet printing. This product may be specifically designed for use in ink jet applications, but there are several ink jet processes, each having different requirements.

We stated in HQ 965614 that “[w]ithout specific information on the exact additives and processing done post-importation, we must conclude that “Cyan 2” falls short of being printing ink for tariff purposes.” This holds true here. Given the vast array of ink jet ink formulations, and without knowing the specific applications, we cannot conclude that this product is something other than a preparation of heading 3204, HTSUS. Thus, the argument that the product need only be dedicated to ink jet printing fails. For the above-mentioned reasons, the argument from several commentors that the product falls squarely within heading 3215, HTSUS, an eo nomine provision, as it satisfies the requirements for printing ink enumerated in Corporation Sublistatica, SA v. United States, 511 F. Supp. 805, 809 (1981) likewise fails.

We agree with the commentors that our focus on post-importation processing was somewhat over-emphasized. Upon further examination of the issue, we now believe the relevance of post-importation processing is properly explained above. In addition, we applied the post-importation processing to language in the proposed ruling that we now believe does not apply to this product, as one commentor argued. Accordingly, this final revocation ruling effectively clarifies the LAW AND ANALYSIS sections of HQ 965614 and HQ 965615.

The commentor also requested that Customs clarify what comprises “simple dilution and dispersion.” Responding first to the clarification, this language applies only to ink in concentrated (be it liquid or paste) and solid forms. Dilution and dispersion are both terms of art in the ink and chemical industries. Thus, simple dilution or simple dispersion would presumably be the most basic forms of dilution or dispersion of a concentrated or solid ink preparation.

Second, we initially thought that “Fast Yellow 2” was a concentrated form, just as the two Cyan products are. It was the opinion of the Customs laboratory that analyzed the sample of the Fast Yellow 2 that the liquid, which was a slurry, was concentrated. At the same time, the lab analyzed two samples, one liquid and one paste, of Cyan 1-based products, which are concentrated (though only the paste was the subject of HQ 965615). The Customs scientist concluded that all three samples were concentrated. However, counsel for Avecia confirmed in a telephone call that the instant product was not in concentrated form. Therefore, the commentor is correct that the “simple dilution and dispersion” language is not a factor in the legal analysis of this product.

In addition to the foregoing reasons and Avecia’s own advertising, we find that Avecia’s patent further supports our conclusion that “Fast Yellow 2” is not a printing ink. Although the title suggests otherwise, the descriptions in the patent refer to formulations to which the product will be added. Accordingly, this product is not classifiable according to GRI 1 as a printing ink of heading 3215, HTSUS.

In light of the foregoing reasons, it is not classifiable according to GRI 2(a), which provides in part for incomplete or unfinished goods to be classified as the good itself if it imparts the essential character of the complete good. The legal note to chapter 32, HTSUS, is specific and inclusive of all preparations, that is, all mixtures, that satisfy the note. This product is a colorant, a preparation based on a direct dye, an ingredient used to make a preparation of 3215, HTSUS. It is fully described in heading 3204, HTSUS, and thus GRI 2(a) is not reached. It would be counterintuitive to classify an ingredient used to make a preparation of 3215, HTSUS (specifically provided for in the legal note), as a preparation of heading 3215, HTSUS. Moreover, without having the specific properties of a particular ink jet process, we cannot determine what the essential character of the complete ink jet product would be. Accordingly, HQ 962365, HQ 962918 and HQ 964191 are incorrect.

Under San Francisco Newspaper Printing Co. v. United States, 9 CIT 517, 620 F. Supp. 738 (1985), the liquidation of the entries covering the merchandise which was the subject of Protests 1001-99-102017, 1401-98-100063 and 1101-98-100179 was final on both the protestant and the Customs Service. Accordingly, this decision will not impact the classification of the merchandise which was covered by the entries subject to HQ 962365, HQ 962918 and HQ 964191.

With respect to the issue of post-importation processing, this ruling effectively clarifies HQ 965614 and HQ 965615, supra p. 8. We have also issued a ruling letter to correct a typographical error which appeared in the proposed ruling and in HQ 965614 and HQ 965615. See HQ 966277, dated April 15, 2003. The error was brought to our attention during the comment period. Both in the heading of the rulings and in the HOLDING, we listed the tariff number as 3204.14.00, HTSUS, a nonexistent provision. This has been corrected to read 3204.14.30, HTSUS, which is the provision described in the HOLDING. This final revocation ruling reflects the correct number. HOLDING:

“Pro-Jet Fast Yellow 2 RO Feed” is classified in subheading 3204.14.30, HTSUS, which provides 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: direct dyes and preparations based thereon: other.”


HQ 962365 and HQ 962918, dated April 28, 2000, and HQ 964191, dated May 24, 2000, are hereby REVOKED. In accordance with 19 U.S.C 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.


Myles B. Harmon, Director
Commercial Rulings Division