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HQ 958436




August 25, 1997

CLA-2 RR:TC:FC 958436 ALS

CATEGORY: CLASSIFICATION

TARIFF NO.: 3204.17.6085

Port Director of Customs
U.S. Customs Service
610 S. Canal St.
Chicago, IL 60607

RE: Application for Further review of Protest 3901-95-102741, dated November 9, 1995, Regarding Certain Acrylic Resin Pigment Pastes

Dear Mr. Roster:

This ruling is in reference to a protest that was filed against your decisions of August 18, 1995, concerning the classification of certain acrylic resin pigment pastes.

FACTS:

The products are described by counsel as water-based preparations consisting primarily of acrylic resin colored with pigments. The products are, after importation, mixed with acrylic, melamine, or urethane resin and various additives, e.g., a flow agent and an anticratering agent, to impart the desired characteristics. The mixed products are used as paints for automobiles. The products have been identified as NWB 230 Maroon R-6424 Paste, NWB 230 Violet RL Paste, and NWB 230 Magenta 343D Paste. Entries covering these products have been liquidated, respectively, under subheadings 3204.17.9030, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), 3204.17.9040, HTSUSA, and 3204.17.6085, HTSUSA.

Counsel has suggested that the products should alternatively be classified in subheading 3204.17, HTSUSA, as synthetic organic coloring material and preparations based thereon, 3206.49, HTSUSA as other coloring matter, subheading 3906.90, HTSUSA, as acrylic polymers in primary form, or subheading 3209.10.0000, HTSUSA, as paints based on acrylic polymers in aqueous solutions.

ISSUE:

What is the classification of the subject acrylic pastes?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's) taken in order. GRI 1 provides that the classification is determined first in accordance with the terms of the headings and any relative section and chapter notes. If GRI 1 fails to classify the goods and if the headings and legal notes do not otherwise require, the remaining GRI's are applied, taken in order.

In considering the proper classification of the imported products, three acrylic resin pigment pastes, we note that they are described as consisting primarily of modified acrylic resin and pigment in a water base, together with small amounts of additives including ethylene-series glycol ethers and/or their acetates. Counsel states that the products contain all the constituent elements of a paint. Counsel notes that the imported pigment pastes are, subsequent to importation, processed by his client's principal customers, into a finished paint product, through a mixing operation in an agitator tank. He notes that additional resin is added to extend the product as is water, as a solvent, to adjust the viscosity of the mixture. He further notes that, depending on the type of finish and application desired, the customer may also mix in other additives which, among other things, may include, e.g., a wetting agent, a flow agent, an antifoaming agent.

Counsel has suggested that the products should be classified in subheading 3209.10.0000, HTSUSA, as a paint based on acrylic polymers in aqueous solutions. He alternatively suggests that the products should be classified in subheadings 3204.17, HTSUSA, which covers synthetic organic coloring material and preparations based thereon; subheading 3206.49, HTSUSA, which covers other coloring matter: preparations as specified in note 3 to Chapter 32, HTSUSA, other than those of 3203, 3204 or 3205, and not elsewhere specified in heading 3206; subheading 3906.90, HTSUSA, which covers acrylic polymers in primary forms.

We have considered each of the proposed subheadings. In regard to classification in subheading 3209.10.0000, HTSUSA, which embraces paints in an aqueous medium, we note that the products are organic coloring matter dispersed in plastics which will, subsequent to importation, be made into paints for automobiles. It is only after additional resins, additives and water are added to the imported products that they can be used for their intended purposes. We do not agree with counsel's conclusion that each product has all of the constituent elements of a paint.

The Customs laboratory has analyzed the products several times and concluded that they are only one part of a two part system, in which the second part contains a significant part of the finished paint. Counsel disagreed with that conclusion and requested that the laboratory test the actual product in the manner suggested by the importer. We tested the product in a manner that was consistent with the importer's instructions. The test showed that the pigment pastes formed a film with a significant amount of air bubble imperfections. However, the contiguous sections of the film not containing the imperfections allowed a small amount of light to filter through and, therefore, cannot be considered opaque. It was suggested that the air bubble imperfections were due to the absence of the second part of the paint formulation. The laboratory noted that only one layer of pigment paste, as instructed by the importer, was applied but that in most automobile applications, a large number of layers of paint are applied to the surface. The laboratory felt the pigment paste would form an opaque film with the application of 3 or 4 layers. Also, according to counsel, the second part of the paint formulation, which is domestic origin and is mixed with pigment paste prior to application, contains opacifiers.

We also do not believe that the subject products could be considered unfinished or incomplete pursuant to GRI 2(a) although the processing subsequent to importation is described as simple. In this regard we note that the Explanatory Note to Rule 2(a) advises that the rule does not normally apply to Section VI goods in view of the scope of the headings of that section.

We next considered the alternative subheadings suggested by counsel. Subheading 3206.49, HTSUSA, would not cover the instant products which have 100 percent organic coloring material. That subheading embraces only inorganic pigments or a mixture of organic and inorganic pigments in which the inorganic pigments are the essential character.

In regard to the possible classification of the products under subheading 3906.90, HTSUSA, which covers plastics in primary form, we agree that the products may be plastic in primary form. However, we believe that it is more specifically provided for in heading 3204, HTSUSA. That heading embraces synthetic organic coloring matter as well as preparations as specified in legal note 3 to chapter 32. That note states "Headings 3203, 3204, 3205, and 3206 apply also to preparations based on coloring matter...of a kind used for coloring matter of a kind used for coloring any material or used as ingredients in the manufacture of coloring preparations." The instant products are preparations of a kind used as ingredients in the manufacture of coloring preparations. In addition, the general Explanatory Notes (EN) to chapter 39, which reflects the opinion of the international classification experts provides that the chapter excludes:

(a) Concentrated dispersions of coloring matter in plastics having the character of products of Chapter 32.

The instant products are coloring matter in plastics having the characteristics of Chapter 32. They do not have the character of chapter 39 since they will not be formed into plastic articles via molding, casting, extruding, rolling or other processes into shapes which are retained on the removal of the external influence.

Even if heading 3906, HTSUSA, was considered along with heading 3204, the latter heading would be preferred pursuant to GRI 3(a) since it gives the most specific description. In other words synthetic organic coloring matter is more specific than acrylic polymers in primary form.

We also considered the possibility of classification of the products in subheading 3824.90.28, HTSUSA, as other mixtures containing by weight of more the 5 percent aromatic substances. While it appears that the acrylic polymer in the pigment paste may act as more than a mere vehicle for the pigment, there is no documentation establishing that the acrylic polymer acts as something more than a mere vehicle for the pigment. Accordingly, we are unable to draw a conclusion as to the appropriateness of so classifying the products.

We have, thus, concluded that the products under consideration should be classified in heading 3204, HTSUSA. The relative subheading will be dependent on the color of the individual product and the applicability of additional U.S. note 3 to section VI, HTSUSA.

HOLDING:

Acrylic resin pigment pastes are classifiable in heading 3204, HTSUSA, and are further classifiable therein based on their color. Specifically, the products NWB 230 Maroon R-6424 Paste, 230 Violet RL Paste and NWB 230 Magenta 343D Paste, based on the applicability of additional U.S. Note 3 to section VI, HTSUSA, are classifiable in subheading 3204.17.6085, HTSUSA and is subject to a general rate of duty of 14.2 percent ad valorem.

Since reclassification of the products as indicated above will result in a lower rate of duty than the liquidated rate as to some of the products, you are instructed to deny the protest, except to the extent reclassification of the products results in a partial allowance.

A copy of this ruling 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(1)(b) of Customs Directive 099-3553-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be provided by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in - 5 -
accordance with this decision must be accomplished prior to the 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 Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division


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