CLA-2 R:C:F 956916 ALS

Area Director of Customs
U.S. Customs Service
6 World Trade Center
Jamaica, NY 10048

RE: Application for Further Review of Protest 1001-93-105254, dated August 4, 1993, Regarding the Classification of Various Products Known by the Trade Name Irgalite®

Dear Area Director:

This ruling is on a protest that was filed against your decision of June 4, 1993, regarding an entry for the above noted products.


The Irgalite® products under consideration are imported in bulk powdered form. Each product has been surface treated to maintain the fine, micro-particle size necessary for use in making the final product. The imported products are stated to consist primarily of colorants and binders or dispersants. The products have been entered and liquidated in subheading 3204.17.5090 (now 3204.17.9085) Harmonized Tariff Schedule of the United States Annotated (HTSUSA), a provision for synthetic organic coloring matter and preparations based thereon as specified in legal note 3 to chapter 32.

The protestant, stating that the products are concentrated lithographic inks in powder form, seeks reclassification of the products in subheading 3215.19.00, HTSUSA, the provision for printing ink: other. The protestant notes that, depending on the substrate to which the imported products will be applied or the printing process, each of them would require the addition of specified proportions of one or more solvents, one or more - 2 -

binders, one or more additives, etc. The Irgalite® products specifically noted in the protest are considered representative of a broad range of Irgalite® products. The protestant's publication "Pigments, Pigment Preparations and Special Dyes (1992)", notes that the Irgalite® name refers to its range of conventional organic pigments. The publication further notes that these pigments vary appreciably in chemical type and technical properties and are widely used in the paint, printing ink, plastics, fibers and allied industries. The protestant states that the principal use of the Irgalite® products in the United States is as lithographic inks. The products specifically noted in the protest were prepared by proportionally mixing, on a 3 roll mill, pigment and lithographic varnish containing linseed oil and drier compounds. An additional 100 parts of such varnish was added to further dilute these products for printing on an IGT press.


Are the products under consideration lithographic inks for tariff purposes?


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. Subheading 3204.17.5090 (now 3204.17.9085), HTSUSA, under which the products were liquidated, covers, in pertinent part, synthetic organic coloring matter and preparations based thereon, particularly synthetic organic coloring matter based thereon as specified in legal note 3 to chapter 32, HTSUSA. Subheading 3215.19.00, HTSUSA, as suggested by protestant, provides for Printing ink: Other. Further statistical breakouts of inks for News and Other uses are listed thereunder with Offset lithographic ink listed under statistical suffix 50.

The referenced legal note, provides, inter alia, as follows:

Heading 3203, 3204, 3205 and 3206 apply also to preparations based on coloring matters...of a kind used for coloring any - 3 -

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..., other preparations of heading 3207, 3208, 3209, 3210, 3212, 3213 or 3215. Counsel argues that the principal use of the subject preparations in the United States is as lithographic inks and that it should be so classified. Noting that the importer's own sales literature indicates that the subject products may normally be used for multiple purposes, while the use of any particular one of the products in the group may be more limited, we disagree with the proposed conclusion.

Since we find that the products are not described by the terms of heading 3215, we are of the further opinion that classification of these products are 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.

The protestant has suggested that these products are concentrated lithographic inks which in the simplest application would require the addition of a single solvent. It notes that a different substrate or process may require the addition of specified proportions of one or more solvents, binders or additives to the same concentrate. The specific examples were prepared by mixing, on a three roll mill.

The Explanatory Notes (EN) to heading 3215, which represent the view of the international classification experts, require (of printing inks) that all ingredients (colorant, vehicle and additives) be present for application to a particular substrate. "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." In other words, every element of the ink must be present except for the solvent.

We note that the instant products are not dedicated to a specific use with a specific substrate, but may require anything from the addition of a single solvent in a specified proportion to the addition of one or more solvents, one or more binders, one or more additives, etc., to the same "ink concentrate." We believe that this is more than a simple dilution. In this regard, we note that the products are mixed on a 3 roll mill, a - 4 -

highly sophisticated piece of equipment, and that they are mixed with a lithographic varnish which is more than a solvent, apparently containing a binder which is a film-forming mechanism.

We disagree with protestant's argument, based on Corporation Sublistatica, S.A. v. United States, 1 CIT 120 (1981), that the imported products may be classified as unfinished inks. The concept of unfinished or incomplete articles is addressed by the Explanatory Note to GRI 2(a) which provides that the Rule does not normally apply to Section VI goods in view of the scope of the headings of that Section. We are of the opinion that Irgalite® products are neither complete except for solvent addition nor "unfinished" inks. They are coloring preparations containing one or more organic colorants and, based on the technical description submitted, 10 to 40 percent binder. They require final formulation and mixing (often more than simple), subsequent to importation, before being considered inks of heading 3215.


Irgalite® products are coloring preparations classified under subheading 3204.17.9085, HTSUSA, a provision for synthetic organic coloring matter, whether or not chemically defined; preparations as specified in legal note 3 to chapter 32, pigments, and preparations based thereon, other, other, other. Products so classified are subject to a general rate of duty of 18.6 percent ad valorem.

Since the classification indicated above is the same as the classification under which the entry was liquidated, you are instructed to deny the protest in full.

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

In accordance with Section 3A(11)(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 entries in 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 - 5 -

personnel via the Customs Rulings 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