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HQ 952891




April 19, 1993

CLA-2 CO:R:C:F 952891 EAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 3204.17.1040

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

RE: Application for further review of Protest No. 1001-92-103316, dated May 11, 1992; sicoplast red 32-1720; pigment brown 31; pigment yellow 119; pigment red 178; GRI 3(b)

Dear Area Director:

This is a decision on a protest filed May 11, 1992, against your decision in the classification of merchandise entered on October 23, 1991 and liquidated on May 8, 1992.

FACTS:

The protestant entered the merchandise, consisting of 330 pounds of sicoplast red 32-1720, under subheading 3206.49.5000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), a provision for other coloring matter preparations as specified in Note 3 to Chapter 32, other coloring matter and other preparations, other, other; duty was claimed at the column one general rate of 3.1 percent ad valorem.

Customs reclassified the merchandise under subheading 3204.17.1040, HTSUSA, a provision for synthetic organic coloring matter preparations as specified in Note 3, Chapter 32, preparations based thereon; duty was assessed at the column one general rate of 8.3 percent ad valorem.

The merchandise is a pigment preparation containing 70 percent by weight of pigment brown 31 [also known as pigment yellow 119], an inorganic pigment based on zinc oxide, and 30 percent by weight of color index pigment red 178, a synthetic organic pigment. The cost of the organic pigment red 178 is approximately ten-fold that of the inorganic pigment brown 31. The tinctorial strength of the organic pigment red 178 is twenty times more so than that of the inorganic pigment brown 31. The mixture itself is red and the protestant has described the function of the pigment brown 31 to be that of an opacifying agent; i.e., it is present in the mixture because of its "hiding characteristics."

ISSUE:

What is the classification under the HTSUSA of sicoplast red 32-1720, a pigment mixture consisting of 70 percent by weight of inorganic pigment brown 31, also known as pigment yellow 119, and 30 percent by weight of organic pigment red 178?

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.

When effected, GRI 3(b) requires that mixtures will be classified as that component which imparts the essential character to the merchandise.

We consider four points on this. First, and quite obviously, since the product is "coloring matter", the color of the mixture; second, the percentage weights of the component materials; third, the costs of the component materials; fourth, the function of the components relative to the function of the mixture.

We find that the essential character of sicoplast red 32-1720 is imparted by the pigment red 178. The mixture is red coloring matter and although the pigment brown 31/pigment yellow 119 is 70 percent by weight of the mixture, the cost of the pigment red 178 is approximately 91 percent of the total cost of the component materials. Finally, the tinctorial strength of the pigment red is twenty times greater than that of the pigment brown/yellow; whatever the "hiding characteristics" of the pigment brown/yellow are, they do not hide the red of sicoplast red 32-1720.

We are of the opinion that sicoplast red 32-1720 is properly classifiable under heading 3204.

HOLDING:

The protest should be denied.

Sicoplast red 32-1720, a pigment mixture consisting of 70 percent by weight of inorganic pigment brown 31, also known as pigment yellow 119, and 30 percent by weight of organic pigment red 178 is classifiable under subheading 3204.17.1040, 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; pigments and preparations based thereon: pigment red 178.

Merchandise entered in 1991 under the foregoing provision was dutiable at the column one general rate of 8.3 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.

Sincerely,

John Durant, Director

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