OT:RR:CTF:CPMMA H307415 CKG
Mr. Geraint C. Davies
Chameleon Specialty Chemicals, Ltd.
4, Winton Road Bowdon
Altrincham WA14 2PG
United Kingdom
RE: Affirmation of NY N306416; classification of colorformer ODB-2
Dear Mr. Davies:
This is in response to your request for reconsideration, dated November 7, 2019, of New York Ruling Letter ("NY") N306416, issued to you on October 17, 2019, concerning the classification of a colorant named Chameleon Black 2, 2-Anilino-3-dibutylamino-6-methylfluoran ("ODB-2"), or Black 2" colorformer, CAS number as 89331-94-2. We have reviewed NY N306416 and have determined that the classification of ODB-2 in subheading 3204.19.40, Harmonized Tariff Schedule of the United States ("HTSUS"), was correct.
In NY N306416 the instant product was described as follows:
[T]he product at issue is a type of colorant known as a colorformer. In its supplied state, "Chameleon Black 2, ODB-2, or Black 2" is an off-white colored powder, which when exposed to appropriate acidic conditions, develops a strong black color. Your submission identifies this product's common commercial name as "ODB-2 or Black 2" and CAS number as 89331-94-2. This product is 99.5%+ pure and primarily used as a coating component in the manufacture of carbonless paper.
The chemical name of ODB-2 is 2-Anilino-3-dibutylamino-6-methylfluoran. ODB-2 is manufactured by the condensation reaction of a keto-acid with a diphenyl amine under acidic conditions. A 'ring-closure' reaction is then carried out in alkali conditions before the product is isolated, washed and dried.
The product is ultimately used in thermal paper. After importation, ODB-2 is mixed with other chemicals, including a developer, and the resulting mixture is coated onto a base paper. When the coating is exposed to heat (e.g., from a thermal printer) the acidic developer and colorformer react to make a black color, thereby creating a printed image. The additional chemicals needed to form the black color are not sold by the importer - it only sells the ODB-2 itself.
Merchandise imported into the United States is classified under the HTSUS, in accordance with the General Rules of Interpretation ("GRIs"). 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. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level.
The 2024 HTSUS provisions under consideration are as follows:
2932: Heterocyclic compounds with oxygen hetero-atom(s) only:
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:
3204.19: Other, including mixtures of coloring matter of two or more of the subheadings 3204.11 to 3204.19:
Note 2(t) Chapter 29 provides as follows:
2. This chapter does not cover:
(g) Coloring matter of vegetable or animal origin (heading 3203), synthetic organic coloring
matter, synthetic organic products of a kind used as fluorescent brightening agents or as
luminophores (heading 3204) and dyes or other coloring matter put up in forms or packings for retail sale (heading 3212);
Note 3 to Chapter 32 provides:
3. Headings 3203, 3204, 3205 and 3206 apply also to preparations based on coloring matter (including, in the case of heading 3206, coloring pigments of heading 2530 or chapter 28, metal flakes and metal powders), 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 3207, 3208, 3209, 3210, 3212, 3213 or 3215.
The Harmonized Commodity Description and Coding System Explanatory Notes ("ENs") constitute the official interpretation of the HTSUS. While not legally binding or dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The EN to heading 3204 provides as follows:
This heading applies, inter alia, to :
A) Unmixed synthetic organic colouring matter (whether or not chemically defined
compounds) and synthetic organic colouring matter diluted with substances which have no dyeing properties (e.g., anhydrous sodium sulphate, sodium chloride, dextrin, starch) to decrease or standardise their colouring power. The addition of small quantities of surface-active products to encourage penetration and fixation of the dye does not affect the classification of colouring matter. Colouring matter of these descriptions is usually in the form of powder, crystals, pastes, etc.
Synthetic organic colouring matter put up in forms or packings for retail sale is classified in heading 32.12 (see Part (C) of the Explanatory Note to that heading).
(B) Different types of synthetic organic colouring matter mixed together.
C) Concentrated dispersions of synthetic organic colouring matter in plastics, natural
rubber, synthetic rubbers, plasticisers or other media. These dispersions are usually in the form of small plates or lumps and are used as raw materials for colouring rubber, plastics, etc., in the mass.
D) Mixtures of synthetic organic colouring matter with relatively large quantities of
surface-active products, or with organic binders, which are used for colouring in the mass plastics, etc., or as ingredients in preparations for printing textiles. They are normally in the form of pastes.
E) 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. However, the preparations referred to in the last sentence of Note 3 to this Chapter are excluded.
This heading also excludes the intermediate products, which are not themselves dyes, obtained at different stages in the production of colouring matter. These intermediate products (e.g., monochloroacetic acid, benzenesulphonic or naphthol- sulphonic acids, resorcinol, chloronitrobenzenes, nitro- or nitrosophenols, nitrosoamines, aniline, nitrated or sulphonated amine derivatives, benzidine, aminonaphtholsulphonic acids, anthraquinone, methylanilines) are classified in Chapter 29. They are quite different from certain crude products classified here, such as phthalocyanines which are chemically "finished" and require only simple physical processing to obtain their optimum tinting power.
Subheading Explanatory Note.
Subheadings 3204.11 to 3204.19
Synthetic organic colouring matter and preparations based thereon as specified in Note 3 to this Chapter are subdivided on the basis of their application or use. The products of these subheadings are described below.
...
Vat dyes are water-insoluble dyes which are reduced in an alkaline bath to the water-soluble leuco form and in that form are applied, mainly to cellulosic fibres, after which they are reoxidised to the insoluble coloured keto form.
* * * *
In your request for reconsideration of NY N306416, you claim classification of the instant merchandise in heading 2932, HTSUS. There is no dispute that the instant product is prima facie classifiable in heading 2932, HTSUS, which provides for "Heterocyclic compounds with oxygen hetero-atom(s) only." However, Note 2 to Chapter 29, HTSUS, excludes synthetic coloring matter of heading 3204 from classification in Chapter 29; therefore, if the product is classified in heading 3204, it is precluded from classification in heading 2932.
Heading 3204, HTSUS, provides for, inter alia, synthetic organic coloring matter. Note 3 to Chapter 32 and the EN to heading 3204 clarify that this heading extends to preparations used as ingredients in the manufacture of coloring preparations. ODB-2 is stated to be used exclusively as an ingredient of a colorant of heading 3204. ODB-22 is not, in its condition as imported, either directly used as a colorant or capable of such use. ODB-2 must be mixed with additional chemicals (not sold by the importer) in order to produce the black color for which it is produced, marketed and sold. However, Note 3 to Chapter 32, HTSUS, as well as the EN to heading 3204 clearly state that heading 3204 includes pigments and preparations of a kind used for coloring any material or used as ingredients in the manufacture of coloring preparations, including certain crude products which are chemically "finished" and require only simple physical processing to obtain their optimum tinting power.
The method of action of the ODB2 is similar to that of a leuco dye, which is type of "vat dye" classifiable in heading 3204. Leuco dyes are colorless until heat is applied. The heat alters the chemical structure, and subsequently produces a color. Leuco dyes are one of the main types of dyes used in thermal paper. Specifically, a leuco dye is colorless at room temperature, but undergoes a structural change when protonated in the presence of heat and a proton donor (i.e., developer). The structural change results in the production of color. The Subheading EN for subheadings 3204.11 to 3204.19 further details vat dyes and describes the leuco form: "Vat dyes are water-insoluble dyes which are reduced in an alkaline bath to the water-soluble leuco form and in that form are applied, mainly to cellulosic fibres, after which they are reoxidised to the insoluble coloured keto form."
ODB-2, as the essential ingredient of the coloring preparations in which it is used, similar to products such as leuco and vat dyes described in heading 3204, HTSUS. Therefore, ODB-2 is described by the terms of heading 3204, HTSUS, as synthetic coloring matter, and classified therein; as such, it is precluded from classification in heading 2932 by Note 2 to Chapter 29.
This conclusion is consistent with prior CBP rulings classifying substantially similar merchandise in heading 3204; specifically, NY N306205, dated October 11, 2019, N306207, dated October 11, 2019, NY N244785, dated August 30, 2013, and NY N226390, dated August 15, 2012.
By application of GRIs 1 and 6, Chameleon Black ODB-2 is classified in heading 3204, HTSUS, specifically subheading 3204.19.40, 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 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: Products described in additional U.S. note 3 to section VI." The 2024 general, column one rate of duty is 6.5 percent ad valorem.
Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 3204.19.4000, HTSUSA ("Annotated"), unless specifically excluded, are subject to an additional 15 percent ad valorem rate of duty. At the time of importation, you must report the Chapter 99 subheading, i.e., 9903.88.15, in addition to subheading 3204.19.4000, HTSUS, listed above.
NY N306416, dated October 17, 2019, is hereby affirmed.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division