CLA-2 CO:R:C:F 089758 EAB

District Director
U.S. Customs Service
111 West Huron Street
Buffalo, New York 14202

Re: Application for Further Review of Protest No. 0901-0- 700496, dated May 31, 1990, concerning black polyethylene concentrate; HRL 084242; NYRL 846248; other coloring matter; pigment; carbon black; plastics; primary forms; polyesters

Dear Sir:

This is a decision on a protest filed May 31, 1990, against your decision in the classification of merchandise liquidated March 2, 1990.

FACTS:

The protestant entered all goods in subheading 3206.49.4000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), a provision for other coloring matter etc., other coloring matter and other preparations, other preparations based on carbon black, to be entered free of duty. The merchandise was reclassified under subheading 3907.99.0050, HTSUSA, a provision for other polyesters in primary forms, other polyesters, other, other, and the rate of duty was advanced to 3.1 per kilogram plus 9.0 percent ad valorem.

Identified as a black polyethylene concentrate, the material is solid pellets, black in color, consisting of 52 percent carbon black and 48 percent low density polyethylene (LDPE).

ISSUE:

What is the proper classification under the HTSUSA of carbon black and low density polyethylene coloring preparation?

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.

The Explanatory Notes to the Harmonized Commodity Descrip- tion and Coding System represent the official interpretation of the Customs Cooperation Council on the scope of each heading; 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 3907, HTSUSA, describes in part polyesters in primary form, which description the subject merchandise clearly fits.

Heading 3206, HTSUSA, describes in part other coloring matter and preparations as specified in Note 3, Chapter 32. That note states that heading 3206 applies to preparations based on coloring matter of a kind used for coloring any material. It is a well established principle that a use provision describes with greater specificity merchandise that may be covered by an eo nomine provision because the use provision is ordinarily more difficult to satisfy. We are of the opinion that heading 3206, HTSUSA, read with Note 3, Chapter 32, is a use provision that more specifically describes the subject goods than does heading 3907. Additionally, Explanatory Note 32.06(A)(I) states in part that heading 3206 includes concentrated dispersions in plastics, used as raw materials for coloring plastics.

Additional U.S. Rule of Interpretation 1(a) addresses classification of merchandise controlled by use and provides that the controlling use is the principal use. We find that the principal use of the subject merchandise is a plastic-based coloring preparation used in the manufacture of colored plastics.

Pursuant to GRI 3(a), we are of the opinion that the merchandise is most specifically described in subheading 3206.49.1000, HTSUSA. Goods similar to the merchandise at issue here have been similarly classified. See HRL 084242 (June 15, 1989) and NYRL 846248 (November 13, 1989).

HOLDING:

Black polyethylene concentrate consisting of carbon black and low density polyethylene in the form of pellets is classified under subheading 3206.49.1000, HTSUSA, which provides for other coloring matter, preparations as specified in note 3 to chapter 32, other coloring matter and preparations, other concentrated dispersions of pigments in plastics materials.

Articles classified under that subheading for the year 1990 were subject to a general rate of duty of 5.9 percent ad valorem and a special rate of duty of 4.7 percent ad valorem upon compliance with all applicable regulations pertaining to the U.S.-Canada Free Trade Agreement.

You are instructed to deny the protest, except to the extent that reclassification of the merchandise as indicated above results in a partial allowance.

A copy of this decision should be attached to the Customs Form 19 and mailed to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director