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HQ 952785




July 19, 1994

CLA-2 CO:R:C:F 952785 EAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 3206.10.00; 3206.49.20

Area Director
U.S. Customs Service
6 World Trade Center
New York, New York 10048

RE: Application for further review of Protest No. 1001-92-103598, dated May 22, 1992; pearlescent pigments and preparations

Dear Area Director:

This is a decision on a protest filed May 22, 1992, against your decision in the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of merchandise entered on November 14, 1991 and liquidated on April 17, 1992.

FACTS:

The protestant entered the merchandise described on the commercial invoices applicable to this decision as colorona bordeaux, colorona sienna, colorona sienna sparkle, colorona copper fine, timeron blue red, dichrona YR, dichrona YB, iriobronze sparkle silver, afflair rutile blue, and black mica, or similar designations, under subheading 3206.49.50, HTSUSA, a residual provision for other coloring matter and other preparations. Duty was claimed at the column one general rate of 3.1 percent ad valorem.

With the exception of black mica, Customs reclassified the merchandise under subheading 3206.10.00, HTSUSA, a provision for pigments and preparations based on titanium dioxide. Duty was assessed at the column one general rate of 6 percent ad valorem.

Customs reclassified the merchandise described as black mica under subheading 6814.90.00, HTSUSA, a provision for plates, sheets and strips or agglomerated or reconstituted mica, whether or not on a support. Duty was assessed at the column one general rate of 5.3 percent ad valorem.

A memorandum of law with exhibits on behalf of protestant has been attached to and filed with Customs Form 19 by counsel. Protestant's Exhibit A lists the quantitative chemical analysis of each item in issue as well as other pearlescent pigments imported by the protestant. The exhibit distinguishes what we will refer to for purposes of this decision five "lines", to-wit: Afflair, Colorona, Timeron, Dichrona and Iriobronze Pearlescent Pigments. Exhibit B is identified by counsel as protestant's brochure: Pearl Lustre - the New Dimension in Color. Exhibit C is identified by counsel as protestant's brochure: Introduction to Afflair.

From Exhibit A, Afflair rutile blue contains 47 percent mica, 52 percent titanium dioxide and one percent stannic oxide. Black mica contains 37 percent mica, 6 percent titanium dioxide and 57 percent iron oxide. Other colors in the Afflair line, the classification of none of which is a part of this decision, contain varying combinations of the foregoing, e.g. rutile brilliant silver consists of a 73:26:1 proportion, rutile sparkling silver consists of an 85:14:1 proportion, rutile green consists of a 46:53:1 proportion, bronze consists of a 66:34 ratio of only mica and titanium dioxide, rutile red consists of mica 52 percent, titanium dioxide 47 percent and stannic oxide one percent and red brown consists of 58 percent mica, 42 percent iron oxide and one percent stannic oxide.

From Exhibit A, Colorona bordeaux consists of 49-53 percent mica and 47-51 percent iron oxide; sienna consists of a 54:46 percent ratio of the same mineral and ore; likewise, sienna sparkle has a sliding ratio of (63-69):(31-37) and copper fine is listed as (51-57):(43-49), mica to iron oxide. We note especially that all of the immediately foregoing products are a part of this classification decision and none contains titanium dioxide.

Continuing from Exhibit A, Timeron blue red consists of mica at 53-59 percent and titanium dioxide in reverse proportions of 41-47 percent.

Again from Exhibit A, Dichrona YR (yellow red) consists of mica, 51-57 percent, titanium dioxide, 41-45 percent and iron oxide, 2-4 percent. In Dichrona YB (yellow blue) we find mica, 48-54 percent, titanium dioxide, 45-49 percent and iron oxide, 1-3 percent.

Finally from Exhibit A, counsel puts forth a "range in composition of iriobronze pigments" that, for purposes of this decision, we will average as mica 78 percent, titanium dioxide 16 percent, iron oxide 5 percent and myristic acid 2 percent. The total average exceeds 100 percent, but we consider the difference inconsequential.

The products at issue are not mere mixtures; as simply stated by the protestant in Exhibit B, as a result of the manufacturing process:

By coating minuscule mica particles with varying quantities of titanium dioxide, we obtain interference colors ranging from silver, through yellow, red, and blue, to green.

Metallic colors can be produced by combining mica with other metal oxides such as chrome (III) oxide or iron (III) oxide. Interesting gold or brown shades result from the simultaneous use of titanium dioxide and iron (III) oxide.

Pearl Lustre - the New Dimension in Color, Exhibit B, p. 8.

From Exhibit C, we note the following:

Afflair (R) Lustre Pigments consist of flat mica platelets coated with titanium dioxide, titanium dioxide/iron oxide or iron oxide. Irregular in shape, the platelets vary in thickness from 0.1 to .5 microns and range in length up to 200 microns. The thickness of each coating is carefully controlled and varies according to the color. Each transparent layer creates the lustre or pearlescent effect.

Introduction to Afflair, Exhibit C, p.1.

ISSUE:

What is the classification under the HTSUSA of pearlescent pigments?

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.

We agree with the protestant that the merchandise belongs under heading 3206, HTSUSA; the issue is joined at the subheading level. Which is to say, at issue is the classification of "pigments." Oxides of metals such as iron and titanium may be deemed inorganic pigments. Condensed Chemical Dictionary (Eleventh Ed.), Van Nostrand Reinhold Company, Pub.

Counsel states that "Neither the HTS nor the Explanatory Notes define the term 'based on' as it applies to pigments, preparations and coloring matter. However, the customs courts have held that an article is 'based on' a particular constituent when that constituent is the 'fundamental and essential constituent' component of the article [citation omitted]." Memorandum attached to Customs Form 19, p. 9.

In view of protestant's own description of its product in general, See Exhibit B, id., p. 8, supra, and the Afflair (R) line in particular, See Exhibit C, p. 1, supra, we must find in fact and are of the opinion that the fundamental and essential constituent component of the pearlescent pigments that contain titanium dioxide is the titanium dioxide. The quantitative analyses in counsel's Exhibit A succinctly corroborate the protestant's announcements that, by carefully varying the quantity of the inorganic pigments/s, particularly titanium dioxide, a veritable rainbow of discrete colors may be obtained. Remarkably, even Afflair rutile red contains no iron oxide. Varying the amount of mica in the process clearly effects a change in the pearlescence of the product, but this is refraction, the bending of light, the effect of a prism and not the results of pigmentation. We would not classify a prism as "coloring matter" and we decline to classify mica as being so. Mica is not a pigment and we find that pearlescent pigments are not based on mica.

With respect to the product iriobronze sparkle silver, since "metallic colors can be produced by combining mica with other metal oxides such as chrome (III) oxide or iron (III) oxide," Pearl Lustre - the New Dimension in Color, supra, we find that it is based upon the inorganic pigment iron oxide.

HOLDING:

The protest should be denied.

Pearlescent pigments made from inorganic pigment/s and mica are classifiable as follows:

Afflair rutile blue, black mica, Dichrona YR (yellow red), Dichrona YB (yellow blue) and timeron blue red under subheading 3206.10.00, HTSUSA, a provision for other coloring matter; preparations as specified in note 3 to this chapter, other than those of heading 3203, 3204 or 3205; inorganic products of a kind used as luminophores, whether or not chemically defined; pigments and preparations based on titanium dioxide (emphasis added). Merchandise entered under the foregoing subheading in 1992 was dutiable at the column one general rate of 6 percent ad valorem.

Colorona bordeaux, sienna, sienna sparkle and copper fine and Iriobronze silver sparkle under subheading 3206.49.20, HTSUSA, a provision for other coloring matter; preparations as specified in note 3 to this chapter, other than those of heading 3203, 3204 or 3205; inorganic products of a kind used as luminophores, whether or not chemically defined; other coloring matter and other preparations; other, preparations based on iron oxides (emphasis added). Merchandise entered under the foregoing subheading in 1992 was dutiable at the column one general rate of 10 percent ad valorem.

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 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 Ruling Module in ACS and the public via the Diskette Subscription Service, Freedom of Information and other public access channels.

Sincerely,

John Durant, Director

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