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HQ 953106


October 14, 1993

CLA-2-CO:R:C:F 953106 K

CATEGORY: CLASSIFICATION

TARIFF No.: 3204.19.40

John H. Heinrich
District Director
Los Angeles District
300 S. Ferry Street, Terminal Island
San Pedro, California 90731

RE: Application For Further Review of Protest No. 2704-92-104269; Chromicolor Plastic Concentrates

Dear Sir:

The following is our decision in response to your referral dated May 24, 1993, of the request for further review of the above- referenced protest.

FACTS:

A consumption entry covering Chromicolor Plastic Concentrates, was liquidated on July 24, 1992, under the provisions for synthetic organic coloring matter, other pigments, subheading 3204.17.3090, Harmonized Tariff Schedule of the United States (HTSUS), with duty at 15 percent ad valorem and under subheading 3204.17.5090, with duty at 20 percent ad valorem. A timely protest under 19 U.S.C. 1514 was filed on October 20, 1992, requesting reliquidation under other, subheading 3204.90.00, with duty at 5.9 percent ad valorem.

On October 20, 1993, under section 177.2 of the Customs Regulations, the protestant, through counsel, requested a binding classification ruling for the merchandise covered by the protest. Information concerning the chemical composition of Chromicolor Plastic Concentrates was submitted which indicated that they contained leuco dye, wax, resin and polyethylene resin. The ruling request and an additional submission dated February 18, 1993, are considered as part of the protest file.

The concentrates, after importation, are used to color various plastic articles such as toys, baby bottles, etc., by introducing the concentrates into the molds for the various products. The plastic articles change colors with the application of heat. Samples of such articles were submitted. However, samples of the concentrates in their condition as imported were not submitted.

ISSUE:

The issue is what is the correct classification of Chromicolor Plastic Concentrates in their condition as imported containing a dye for its coloring ingredient.

LAW AND ANALYSIS:

Heading 3204, HTSUS, 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. Subheadings 3204.17.30 and 3204.17.50, provide for other synthetic organic coloring matter and preparations based thereon as specified in note 3 of the chapter, of pigments. The chemical composition of the concentrates reveals that they contain a dye not a pigment. Accordingly, we conclude that the concentrates are not classified as pigments under subheadings 3204.17.30 and 3204.17.50.

The position of the protestant is that the concentrates are more than just synthetic organic coloring matter and preparations based thereon and are therefore classifiable as synthetic organic products under "other", subheading 3204.90.00, with duty at 5.9 percent ad valorem. We do not agree.

The various synthetic organic coloring matter covered by heading 3204 are provided for in the subheadings which follow with luminophores falling within the last other provision, subheading 3204.90.00. There are no other products described in heading 3204 that may be classifiable in subheading 3204.90.00 except luminophores. The concentrates are not luminophores and are not classifiable under other, subheading 3204.90.00 as claimed by the protestant.

The General Rules of Interpretation (GRI), HTSUS, set forth the manner in which merchandise is to be classified under the tariff. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI taken in order. We are satisfied that the classification of the concentrates at issue is governed by GRI 1. When GRI 1 is applicable, we have no recourse to the remaining GRI such as GRI 3(b) and essential character.

Subsection 3204.19.40, provides for other products described in additional U.S. note 3, section VI, Chapter 32 (of a kind used for coloring any material or used as ingredients in the manufacture of coloring preparations), not provided for in the preceding subheadings of heading 3204. The concentrates are synthetic organic coloring matter used for coloring plastic
materials and as such, they are classifiable under other, subheading 3204.19.40, HTSUS, with duty at the rate of 15 percent ad valorem.

HOLDING:

Chromicolor Plastic Concentrates containing leuco dye, of a kind used for coloring any material or used as ingredients in the manufacturing of coloring preparations, are classified under other, subheading 3204.19.40, HTSUS, with duty at the rate of 15 percent ad valorem.

You are instructed to deny the protest in part and to allow the protest in part on the basis of this decision as follows.

The entry for part of the merchandise was liquidated under subheading 3204.17.30, HTSUS, at 15 percent ad valorem. For this merchandise, the protest should be denied and reliquidated with the correct classification under subheading 3204.19.40, HTSUS, with no change in duty.

The entry for part of the merchandise was liquidated under subheading 3204.17.50, HTSUS, with duty at the rate of 20 percent ad valorem. The protestant should have the benefit of this decision, with reliquidation at the correct classification under subheading 3204.19.40, HTSUS, with duty at the rate of 15 percent ad valorem. A copy of this decision should be attached to Customs Form 19, Notice of Action, to be provided to the protestant.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, 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 the decision must be accomplished prior to 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 personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

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