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HQ 953500





December 20, 1994

CLA-2 CO:R:C:F 953500 EAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 3208.90.00

District Director
U.S. Customs Service
1000 2nd Street
Seattle, Washington 98104

RE: Application for Further Review of Protest No. 3004-2-100174, dated October 29, 1992, and liquidated October 16, 1992; "Zebron 1846 Spray Grade"

Dear Sir:

This is a decision on a protest filed October 29, 1992, against your decision in the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of merchandise entered on January 6, 1992 and liquidated on October 16, 1992.

FACTS:

The protestant entered the merchandise under subheading 3208.90.00, HTSUSA, a residual provision for other paints and varnishes based on polymers in a nonaqueous medium. Duty was claimed at the column one general rate of 3.2 percent ad valorem.

Customs reclassified the merchandise under subheading 3214.90.50, HTSUSA, a provision for nonrefractory surfacing preparations. Duty was assessed at the column one general rate of 11 percent ad valorem.

Protestant seeks reclassification to subheading 3208.90, HTSUSA.

Customs laboratory analysis of "Zebron 1846 Spray Grade" indicates a grey, thick, viscous paste of a polyurethane resin modified with a drying oil and containing approximately 39 percent inorganic material, including quartz and sodium silico-aluminate.

Applied as a liquid, it is used, according to marketing and other documentation provided by the protestant, for corrosion protection and abrasion resistance on the exterior hulls of ships and marine drilling platforms, pipe piles of offshore oil and gas production platforms, and pipelines above and below ground.

ISSUE:

Whether "Zebron 1846 Spray Grade" is classifiable under the HTSUSA as a paint or as some other surface preparation.

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.

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; 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.

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.

Heading 3208 describes paints based on synthetic polymers, dispersed in nonaqueous medium. For purposes of this decision, we assume that the weight of the solvent exceeds 50 percent by weight of the solution, such that the requirements of Legal Note 4, Chapter 32, are satisfied. Regarding "paints," EN 32.08(A) admits varying quantities of other products to the vehicle for specific purposes. We find the quartz and silico-aluminate substances providing abrasion resistance are such other products.

Heading 3214 describes non-refractory surfacing preparations for facades, indoor walls, floors, ceilings or the like. The introductory language of EN 32.14 informs us that all of the products of heading 3214 are preparations of "widely differing composition . . . essentially characterised by the uses to which they are put." In particular, "non-refractory surfacing preparations" are used to waterproof and improve the appearance of facades and indoor walls, floors and ceilings, also swimming pool walls and floors, "etc." EN 32.14(B). We find that ships, offshore drilling and production platforms, petroleum and other chemical pipelines covered with the material at issue are not encompassed by the "etc." coda to exterior facades and indoor walls, floors and ceilings of buildings and walls and floors of swimming pools that are coated for purposes of waterproofing and aesthetics.

"Zebron 1846 Spray Grade" clearly is a composite good, and composite goods are frequently classified according to a provision of GRI 3. We are of the opinion, however, that because the terms of the foregoing headings permit classification of this merchandise pursuant to GRI 1, it is not necessary to resort to successive GRIs for classification. In particular, we find that the merchandise is a paint of the kind described in heading 3208, HTSUSA, and is not a preparation for coating the surfaces of building facades or interior walls, floors or ceilings, or of swimming pools.

HOLDING:

The protest should be allowed.

"Zebron 1846 Spray Grade" is classifiable under subheading 3208.90.0000, HTSUSA, a provision for "Paints and varnishes (including enamels and lacquers) based on synthetic polymers or chemically modified natural polymers, dispersed or dissolved in nonaqueous medium; solutions as defined in note 4 to this chapter: Other."

Merchandise entered under the foregoing provision in 1992 was dutiable at the column one general rate of 3.2 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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