CLA-2 CO:R:C:F 956976 EAB
U.S. Customs Service
6 World Trade Center
New York, New York 10048
Re: Application for further review of Protest No. 1001-93-103610, dated June 8, 1993; Orasol Orange RLN; Orasol Red
3GL; 3215.19; ink; EN 32.04; Corporation Sublistatica, S.A.
v. U.S. (CIT 1981); BASF Wyandotte (CIT 1987)
Dear Area Director:
This is a decision on a protest filed June 8, 1993, against
your decision in the classification under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) of merchandise
entered on October 30, 1992, liquidated on March 12, 1993.
The protestant entered the merchandise under subheading
3204.19.1100, HTSUSA, a provision for synthetic organic coloring
matter and preparations based thereon as specified in Note 3 to
Chapter 32, other, solvent dyes and preparations based thereon.
Customs liquidated the merchandise as entered, and collected
duties at 8.2 percent ad valorem.
The protestant now seeks classification of all of the goods
under subheading 3215.19.00, HTSUSA, a provision for printing ink
other than black printing ink, dutiable at the column one general
rate of 1.8 percent ad valorem.
Technical literature was submitted by the protestant as well
as by counsel for the protestant as exhibits to the Memorandum in
Support of Protest and Request for Further Review. From the
protestant's "1992 Pigments, Pigment Preparations and Special
Dyes" widely distributed marketing booklet, at page 36, we learn
that "[t]he Orasol (R) dyes have a very wide field of application
in lacquers, printing inks and fibers." There accompanies this
general description a chart that sets out the Product Name,
Chemical Type, CI No., CI Generic Name and major and potential
uses of the finished dyes. Specifically "Orasol" Orange RLN, a
1:2 chrome complex, the CI Generic Name of which is Solvent
Orange 59, has major uses as the pigmenting agent in general
industrial paints, wood stains, liquid packaging inks and acetate
fibers; "Orasol" Red 3GL, also a 1:2 chrome complex, the CI
Generic Name of which is Solvent Red 130, has major uses as the
pigmenting agent in general industrial paints, wood stains and
liquid packaging inks.
Whether the imported goods used to manufacture protestant's
products known as "Orasol" dyes 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
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
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.
Based upon protestant's marketing description of the
finished "Orasol dyes," we are of the opinion that the imported
merchandise itself contains no binder or solvent and is only a
pigment, either Solvent Orange 59 or Solvent Red 130, such that
it cannot be an "ink", not even a "powder ink" of the kind at
issue in either Corporation Sublistatica, supra or BASF
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 . . . paper or wood. It is also used to
prepare . . . inks of heading 3215, and for coloring plastics, .
. . etc." EN 32.04(I) at 455. We are of the opinion that the
broad scope of heading 3204 is precisely the circumstance in
which GRI 2(a) does not normally apply.
We are of the opinion that the imported goods, each of which
is used to manufacture "Orasol Orange RLN" and "Orasol Red 3GL,"
as the case may be, are 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
You are instructed to deny the protest in full.
Solvent Orange 59 and Solvent Red 130 used in the
manufacture of "Orasol" dyes are classified under subheading
3204.19.1100, 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: Solvent dyes and
preparations based thereon: Solvent orange 59; solvent red 130."
Merchandise entered in 1992 under the foregoing provision
was dutiable at the column one general rate of 8.2 percent ad
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
John Durant, Director
Commercial Rulings Division