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HQ 962365




April 28, 2000

CLA-2 RR:CR:GC 962365 MGM

CATEGORY: CLASSIFICATION

TARIFF NO.: 3215.19.00

Port Director
U.S. Customs Service
2nd & Chestnut Sts.
Philadelphia, PA 19106

RE: Protest 1101-98-100179; “ProJet Fast Yellow 2" Coloring Preparation for Inkjet Printers

Dear Port Director:

This is our decision regarding Protest 1101-98-100179, concerning your classification of colorant for inkjet printers under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The instant merchandise, traded as “ProJet Fast Yellow 2," consists of a dye and certain other additives in an aqueous medium made up of water and organic solvent. It is used in inkjet printers. The merchandise differs from traditional inks in that it does not include a binder. The product is described in Patent # 5,374,301, issued December 20, 1994, entitled “Inks Suitable for Use in Ink Jet Printing.”

The merchandise was entered in November 1997, under subheading 3204.12.30, HTSUS, which provides for preparations based on synthetic organic coloring matter. The entries were liquidated on September 25 and October 2, 1998, with classification as entered. The liquidation of these entries was timely protested on October 21, 1998. In a submission which accompanied the protest, the protestant argues against the entered classification in heading 3204, HTSUS, and in favor of classification in heading 3215, HTSUS, which provides for printing ink and other inks.

ISSUE:

Is the described merchandise an “ink” of heading 3215, HTSUS?

LAW AND ANALYSIS:

Merchandise imported into the U.S. is classified under the HTSUS. 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 requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law.

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. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs.

In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See, T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).

The merchandise was classified in heading 3204, HTSUS, upon liquidation. This heading 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....” Note 3 to Chapter 32 states that heading 3204 applies also to preparations based on coloring matter of a kind used for coloring any material or used as ingredients in the manufacture of coloring preparations. Note 3 to Chapter 32 further states that heading 3204 does not apply to preparations of heading 3215, HTSUS. Thus, if the merchandise is an ink of heading 3215, it cannot be classified as a preparation based on synthetic organic coloring matter of heading 3204.

Heading 3215, HTSUS, provides for “Printing ink, writing or drawing ink and other inks, whether or not concentrated or solid.” The term “ink” is not defined in the HTSUS, however, it has been judicially construed. In Corporacion Sublistatica, S.A. v. U.S., decided under the Tariff Schedules of the United States (TSUS), predecessor to the HTSUS, the Court of International Trade (CIT) held that gravure ink was defined as containing “a colorant, consisting of a pigment or a dye, a binder and a solvent.” Corporacion Sublistatica, S.A. v. U.S., 1 Ct. Int’l Trade 120, 124, 511 F.Supp. 805, 808 (1981). In a subsequent case, also decided under the TSUS, the CIT stated that “inks contain colorants, binders and solvents.” BASF Wyandotte Corp. v. U.S., 11 Ct. Int’l Trade 652, 656, 674 F.Supp 1477, 1480 (Ct. Int’l Trade 1987), aff’d 6 Fed. Cir. (T) 164, 855 F.2d 852 (1988) (where an expert witness “utilized this definition in his testimony and recognized it as a long-standing printing industry definition.”). In a third TSUS case, which pertained to the classification of toner and developer used in printing, the CIT stated “plaintiff is unable to distinguish the clear and categorical definition of ink established by this court in Corporacion Sublastica, S.A. v. United States.” Tomoegawa USA, Inc. v. United States, 12 Ct. Int’l Trade 112, 117, 681 F.Supp. 867, 870-1 (1988).

The CIT has also held that powders which contain colorants and binders, but not solvents, were classified as “ink powders,” rather than as dyes. Corporacion Sublistatica, S.A. v. U.S. Thus, under the TSUS, a colorant preparation (either pigment or dye) was considered an ink or ink powder if a binder were present, and other than an ink or ink powder if no binder were present. “A binder for printing inks is defined as a solid substance that is soluble in an oil or in a solvent...[t]he binder derives its name from the fact that it binds the pigments to the surface printed.” Larsen, Industrial Printing Inks, Reinhold Publishing Corp., 1962, at 84-5. This definition of “ink” has been followed by Customs in determining the scope of heading 3215, HTSUS. See HQ 953655, dated March 3, 1995; HQ 954611, dated January 12, 1995; HQ 956158, dated July 27, 1995; HQ 956976, dated March 7, 1995.

The present situation differs from that addressed in previous cases in that there have been technical advances in the formulation of ink used in inkjet printers. Traditional inks used a binder to affix colorant particles to a substrate (typically paper). The “ProJet Fast Yellow 2” coloring preparation achieves the same end by using a dye that is soluble in an alkaline aqueous medium, but less soluble on paper, which tends to be acidic. Thus the “ProJet Fast Yellow 2” coloring preparation adheres to paper without a traditional binder. The tariff classification of a product of this nature has not before been addressed by Customs.

Counsel for protestant argues that “ProJet Fast Yellow 2” coloring preparation should be classified as an ink because it functions in the manner of an ink and is sold as an ink. It is an established principle of tariff classification that “tariff acts are made not only for the present but also for the future, thereby embracing articles produced by technologies which may not have been employed or known to comme[r]ce at the time of the enactment of the original provision.” Sublistatica at 809. This principle was applied in the BASF case where the court stated that the merchandise in question did “not appear to have been specifically contemplated by the drafters of the TSUS. Nonetheless, as is usual in tariff classification, if [the preparations] fit the definition of either inks or dyes they will be classified as such.” BASF at 1480. In the case at hand, the merchandise is traded in commerce in the same manner as traditional inks. Further, it possesses chemical functional groups which serve to bind the colorant to the substrate and allow the merchandise to act as an ink. That is, the function of a binder is achieved despite the absence of a separate compound dedicated to this role. Accordingly, the instant merchandise should be classified as an ink of heading 3215, HTSUS.

Within heading 3215, HTSUS, there are subheadings for “[p]rinting ink” and “[o]ther” than printing ink. As “ProJet Fast Yellow 2” is designed solely for use in inkjet printers, it is classified as a “printing ink.” Within the subheading for “[p]rinting ink” are provisions for black printing ink and printing inks which are other than black. As the instant merchandise is yellow in color, it is classified as other than black and falls to subheading 3215.19.00, HTSUS.

HOLDING:

“ProJet Fast Yellow 2" is classified in subheading 3215.19.00, HTSUS. Since reclassification of the merchandise as indicated above will result in a lower rate of duty than claimed, you should allow the protest.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division

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