HQ W967668

April 17, 2008

# 

# CLA-2 OT:RR:CTF:TCM W967668 HkP

**CATEGORY:** Classification

**TARIFF NO.:** 3215.19.00

Port Director

Port of Chicago

U.S. Customs and Border Protection

610 S. Canal Street

Room 306

Chicago, IL 60607

**RE:** Application for Further Review of Protest No. 3901-05-100117;
concentrated pigment preparations with added solvents and binders -
HGI-4732 and HGI 4733

Dear Port Director:

This is our decision on the Application for Further Review ("AFR") of
Protest No. 3901-05-100117, timely filed by counsel on behalf of Micro
Inks Corporation ("Micro Inks"), concerning the classification of
concentrated pigment preparations with added solvents and binders under
the Harmonized Tariff Schedule of the United States ("HTSUS").

In reaching our decision this office also considered information
provided by Micro Inks during a teleconference on February 15, 2006, and
in written submissions, dated February 17, 2006, and October 23, 2007.

**FACTS:**

The subject merchandise, Micro Ink products "HGI-4732" and "HGI 4733",
is described by Protestant as concentrated, low tack, heat set (or
"heat-set" or "heatset") inks. HGI-4732 and HGI 4733 contain flushed
pigment preparations as colorant, as well as some solvents and several
binders. We note that on the Micro Inks website, products with the
prefix "HF" are flushes while products with the prefix "HGI" are
pigments. HGI products are designated as being for "colouration of
printing inks" and "HF" products as being "intermediate for printing
inks". However, counsel for Micro Inks has informed CBP that that
imported preparations are based on flushed pigments. This decision is
therefore based on the assumption that that assertion is correct.

According to our research on the Internet, heat-set inks[^1]:

> \[A\]re used in heat set web offset presses and require the use of an
> oven and a chill roll sections. The "oven" drives off the fresh ink
> liquid solvents and the "chill roll section" (a series of cold rolls),
> solidifies the remaining pigment-in-resin component. The typical
> heat-set ink is usually made up of hydrocarbon solvents, hard soluble
> resins, drying oil varnishes and plasticizers along with pigments. As
> the inks require heat to drive off the solvents, no driers are added
> like in the sheetfed inks thus they can be left in the ink sump for
> extended periods of time if needed.

[Ink]{.underline}, International Paper Company, at
http://internationalpaper.com/PDF/ PDFs_for_Papers/Ink.pdf. [Ullman's
Encyclopedia of Industrial Chemistry]{.underline}, Sixth ed., vol. 29.
further explains:

> Heatset inks are expected to release their volatile components as
> quickly as possible and produce high-gloss printed image. For this
> reason they contain relatively low-boiling mineral oils (*bp* ca. 200-
> 300 °C) and gloss producing hard resins. The mineral oils should not,
> however, evaporate on the printing press itself. Their boiling range
> must therefore be kept within very narrow limits.
>
> Typical formulation for heatset web offset inks:
>
> Organic pigments 15-25 wt%
>
> Hard resins 25-35 wt %
>
> Soft resins + drying oils 5--15 wt%
>
> Mineral oils 25--45 wt%

(*bp* ca. 200- 300 °C)

> Additives 5--10 wt%
>
> Because of the process conditions, compositions for these inks are
> similar to those of sheet-fed offset inks\[[^2]\], although the
> proportion of oxidatively drying resins and oils is lower, the mineral
> oils have lower boiling ranges and driers are normally excluded.

Low tack press ready ink has a tack of 4.5--6.5, viscosity of 40-80, and
a yield value of 1000-2500. Leach and Pierce, Ed., [The Printing Ink
Manual]{.underline} (5^th^ ed. 1993). According to the submitted
information, in its imported condition, HGI-4732 contains, by weight,
between 17-19 % pigment, 33 -- 36 % resins, and 47 -- 51 % oils. As
imported, this product has a tack of 5--6, viscosity of 40--80, and a
yield value of 1000--2000. [^3] HGI-4733 contains, by weight, between
17-19 % pigment, 36 -- 40 % resins, and 44 -- 50 % oils, as imported. As
imported, this product has a tack of 5--6, viscosity of 45--85, and a
yield value of 1250--2500.

CBP has been informed that the imported products are approximately 80%
of the contents of heat set ink sold by Micro Inks. After importation,
more solvents (varnish, oil), binders, wax compound and additives, some
of which are comprised in a let down vehicle, are added to the products.
The products are not subjected to grinding or milling but are mixed
using a turbine/coaxial mixer and undergo filtration. They are then
considered to be press-ready inks. The ingredients added
post-importation represent approximately 20 percent by weight, 16
percent by value, and 15 percent of the total cost of finished ink.

The merchandise was entered on July 13, 2004,[^4] and classified in
subheading 3215.19.0050, HTSUSA, which provides for: Printing ink,
writing or drawing ink and other inks, whether or not concentrated or
solid: Printing ink: Other: Offset lithographic." On November 12, 2004,
CBP liquidated the entry under subheading 3204.17.90, HTSUSA, which
provides for, *inter alia*: "preparations as specified in note 3 to this
chapter based on synthetic organic coloring matter: Synthetic organic
coloring matter and preparations based thereon as specified in note 3 to
this chapter: Pigments and preparations based thereon: Other." The
protest was timely filed on January 31, 2005.

**ISSUE:**

What is the correct classification of the concentrated pigment
preparations?

**LAW AND ANALYSIS:**

Initially, we note that the matter protested is protestable under 19
U.S.C. §1514(a)(2) as a decision on classification. The protest was
timely filed, within 90 days of liquidation of the first entry for
entries made before December 18, 2004, and within 180 days of
liquidation of the first entry for entries made on or after December 18,
2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L.
108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. §
1514(c)(3) (2006)).

Further Review of Protest No. 3901-05-100117 was properly accorded to
protestant pursuant to 19 C.F.R. § 174.24 because the decision against
which the protest was filed involves questions of law and fact that have
not been ruled on by the Commissioner of Customs or his designee or by
the Customs courts and is inconsistent with a ruling with respect to the
same or substantially similar merchandise.

Classification under the HTSUS is made in accordance with the General
Rules of Interpretation. GRI 1 provides that the classification of goods
shall be determined according to the terms of the headings of the tariff
schedule and any relative Section or Chapter Notes. In the event that
the goods cannot be classified solely on the basis of GRI 1, and if the
headings and legal notes do not otherwise require, the remaining GRIs
may then be applied.

> The HTSUS provisions under consideration are as follows:

**3204**    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:

3204.17           Pigments and preparations based thereon:\
                                          Other:\
\* \* \*\
3204.17.90                     Other .....

**3215**    Printing ink, writing or drawing ink and other inks, whether
or not

concentrated or solid:

> Printing ink:

\* \* \*

3215.19.00           Other .....

Note 3 to Chapter 32, HTSUS, provides, in pertinent part:

> Headings 3203, 3204, 3205, and 3206 apply also to preparations based
> on coloring matter ... of a kind ...used as ingredients in the
> manufacture of coloring preparations. The headings do not apply,
> however ... to other preparations of heading 3207, 3208, 3209, 3210,
> 3212, 3213 or 3215.

The Harmonized Commodity Description and Coding System Explanatory Notes
(ENs) constitute the official interpretation of the HTSUS. While not
legally binding nor dispositive, the ENs provide a commentary on the
scope of each heading of the HTSUS and are generally indicative of the
proper interpretation of these headings at the international level.
[See]{.underline} T.D. 89-80.

EN 32.04(I) states, in part, that heading 3204, HTSUS, includes:

(E) Other preparations based on synthetic organic coloring matter of a
    kind used for colouring any material or used as ingredients in the
    manufacture of coloring preparations. However, the preparations
    referred to in the last sentence of the Note 3 to this Chapter are
    **excluded**.

EN 32.15(A) describes printing inks or colors as:

> \[P\]astes of varying consistency, obtained by mixing a finely divided
> black or coloured pigment with a vehicle. The pigment is usually
> carbon black for black inks and may be organic or inorganic for
> coloured inks. The vehicle consists of either natural resins or
> synthetic polymers, dispersed in oils or dissolved in solvents, and
> contains a small quantity of additives to impart desired functional
> properties.

EN 32.15 also explains that products of heading 3215, HTSUS, are
"generally in the form of liquids or pastes, but they are also included
in this heading when concentrated or solid ... to be used as inks after
simple dilution or dispersion."

It is the position of Micro Inks that the imported products are suitable
for use as press-ready inks for web offset heatset printing on uncoated
newsprint paper stock. As such, Protestant asserts that they are
classifiable as printing ink in heading 3215, HTSUS, and not as pigments
or preparations based on pigments of heading 3204.

The Court of International Trade ("CIT") recently considered the scope
of headings 3204 (more specifically, subheading 3204.19 "solvent dyes
and preparations based thereon") and 3215, HTSUS, in relation to the
proper classification of imported ink-jet concentrates consisting of
chromophores (water-soluble colorant molecules) in deionized water.
[Avecia, Inc. v. United States]{.underline}, Slip Op. 06-184, (Dec. 19,
2006). As imported, the products at issue in [Avecia]{.underline} had to
undergo a finishing process involving reverse osmosis to remove certain
inorganic molecules like chlorides and calcium, sulfate ions and cations
such as iron. The processing required the addition of new deionized
water and incidental displacement of some of the imported water. The
liquids were also further processed with additives, as required by buyer
specifications. At 10.

In a submission dated October 23, 2007, Micro Inks contends that the
decision reached by the court in [Avecia]{.underline} supports
classification of the instant products under heading 3215, HTSUS.

After examining the decision in [Avecia]{.underline}, we find that it is
not dispositive of classification of the merchandise at issue for
several reasons. One, the merchandise before the court was ink-jet ink;
the merchandise under consideration in this decision is heatset ink.
Two, the decision of the court was highly fact specific as it took into
account factors such as the methods of manufacture of ink-jet ink versus
textile dyes (not at issue here), as well as tests performed by the
Plaintiff on the merchandise. Most of the factors examined by the court
are not under consideration here. Three, the court was asked to consider
whether the merchandise before it was a dye or dye preparation
classified under subheading 3204.19, or printing ink of heading 3215. In
the instant case, the issue is whether the products at issue are
"pigments and preparations based thereon" of subheading 3204.17, HTSUS,
or printing inks of heading 3215. Nonetheless, the court considered
several factors regarding the scope of headings 3204 and 3215, HTSTS,
which may be indicative but not determinative of the classification of
the merchandise at issue.

Note 3 to Chapter 32 precludes preparations of heading 3215, HTSUS, from
classification in heading 3204. The Court of Appeals for the Federal
Circuit stated in [Ciba-Geigy Corporation v. United States]{.underline},
223 F.3d 1367 (2000) (citations omitted) that if merchandise is
classifiable in both heading 3204 and 3215, it should be properly
classified in heading 3215 as the more specific heading. It is
appropriate, therefore, to first determine whether the products at issue
are provided for in heading 3215. If provided for in heading 3215 then
merchandise cannot be classified in heading 3204. The court in
[Avecia]{.underline} followed this approach.

In seeking to understand the scope of heading 3215, the court considered
the ordinary dictionary meaning of the terms "ink" and "printing" since
these words are not defined in the HTSUS. The definition of "ink" as "a
dispersion of a pigment or a solution of a dye in a carrier vehicle,
yielding a fluid, paste or powder to be applied to and dried on a
substrate" ([McGraw-Hill Encyclopedia of Science and
Technology]{.underline} 201 (9^th^ ed. 2002)) was agreed to by the
parties and adopted by the court. The court also adopted the parties
assumed understanding of the term "printing", based on the
[Oxford]{.underline} dictionary definition, "an image or likeness of
anything" and the description found in [Webster's]{.underline},
"reproduction (as on paper or cloth) of an image from a printing surface
made typically by contact impression that causes a transfer of ink." At
38-39. The court found, as a matter of law, that "printing is a process
of image reproduction, and that in order to be classifiable as a
'printing ink' of heading 3215 an imported product must be used or
intended for use in printing." At 40.

The court enumerated several factors (some of which are specific to the
[Avecia]{.underline} case and will not be discussed here) which it
considered persuasive in reaching its decision on classification.
Specifically, the Court noted that: (1) although the imported products
were not commercially used as printing inks in their condition as
imported, the products were capable of printing in that condition. At
44; (2) it was not shown that OEM-specific additives impacted the
printing characteristics or functionality of an "ink system" that
otherwise appeared to be classifiable as printing ink of heading 3215 by
virtue of the fact that it is capable in its condition as imported after
simple dilution. At 45; (3) Printing inks are a type of product that may
fall within the exception contemplated by the use of "normally" in the
Explanatory Note to GRI 2(a), and, indeed, this court's precedent
compels recognizing the application of GRI 2(a) in the context of an
"unfinished ink,"citing [BASF Corp. v. United States]{.underline}, 427
F. Supp. 2d 1200, 1208 (2006) (noting government's argument that product
at issue "is classifiable in heading 3811 by operation of GRI 2(a) as
'an unfinished or incomplete form of a prepared additive for
gasoline'"), and [Corporacion Sublistatica v. United
States]{.underline}, I CIT 120, 511 F. Supp.805 (1981). At 48; (4) even
if the imported products are *arguendo* classifiable as "other" dyes of
heading 3204, Note 3 to Chapter 32, HTSUS, precludes classification of
printing inks of heading 3215 under heading 3204. Specifically, Note 3
states that heading 3204 does not apply to "other preparations of
heading . . . 3215."[^5] The court found that a "preparation" is "a
substance specially prepared, or made up for its appropriate use or
application, citing [Orlando Food Corp. v United States]{.underline},
140 F. 3d 1437, 1441 (1998); (5) Additives that do not affect
functionality do not define the classification of printing inks. At 51;
(6) "Only those dyes (and pigments) that have the essential character of
printing inks are classifiable as such." At 63.

The first argument made by Counsel is that the pigment content of the
subject merchandise is entirely consistent with the range that CBP has
said is consistent with classification as ink. The entries at issue have
17-19 % pigment, by weight. Counsel cites NY I86471 (February 14, 2003)
in which CBP stated than a pigment content of 8-20 percent was
indicative of ink as well as a CBP Laboratory report which found that
with respect to HGI-4718[^6] (a product claimed to be substantially
similar the subject merchandise), "the percentage of pigment is within
the range listed for heat set printing ink."[^7]

We do not disagree that the amount of pigment contained in the
merchandise at issue may also be found in printing ink. We note,
however, that laboratory reports may contain conclusions that do not
control tariff classification.

The second argument made by Counsel is that in their imported condition,
the products at issue include all the necessary additives to impart the
desired functional properties of ink. Specifically, it is claimed that
each of the products have the same viscosity, tack, and other functional
properties listed in the FACTS section above as press-ready ink, the
pigment content is within a range consistent with press-ready ink, and
that the products' use in low tack heat set printing is predefined at
importation. Further, this application is not altered by the dilution
and mixing processes which take place subsequent to importation. The
post importation processing merely adjusts the characteristics to
satisfy specific customer requirements. According to the submitted
information, the only ingredients added subsequent to importation are
those that adjust yield and viscosity, that is, a let down vehicle, wax
compound additive and ink oils.

Based on the foregoing, we find that the products at issue possess the
essential character of printing inks of heading 3215 because they are
capable of printing in their imported condition and have the same tack,
viscosity and yield as press-ready ink. Further, the additives added
after importation do not affect the functionality of the products and
therefore do not define the classification of printing inks.
Accordingly, we find that the products at issue are classified as
printing inks of heading 3215, HSTUS. Based on the above analysis,
classification in heading 3204 need not be addressed.

**HOLDING:**

By application of GRI 1, Micro Inks products HGI-4732 and HGI 4733 are
classified in heading 3215, HTSUS. They are specifically provided for in
subheading 3215.19.00, which provides for: "Printing ink, writing or
drawing ink and other inks, whether or not concentrated or solid:
Printing ink: Other." The 2004 column one general rate of duty is 1.8%
*ad valorem*.

Since reclassification of the merchandise as indicated above will result
in a lower rate of duty as claimed, you are instructed to allow this
protest in full. In accordance with the Protest/Petition Processing
Handbook (CIS HB, January 2002, pp. 18 and 21), 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 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 make the decision available to CBP personnel, and to the
public on the Bureau of Customs and Border Protection Home Page on the
World Wide Web at www.cbp.gov, by means of the Freedom of Information
Act, and other methods of public distribution.

> Sincerely,

Myles B. Harmon, Director

Commercial and Trade Facilitation Division

[^1]: Generally, every printing ink is formulated from three basic
    components: a colorant, a vehicle system to carry the colorant, and
    additives such as waxes and driers. Colorants may be dyes or
    pigment-based and may be in powder form (dry toner), in concentrated
    paste known as a flush, or in a liquid dispersion. Vehicles are made
    up of oils (petroleum or vegetable), solvents, water, or a
    combination of these. Most vehicles also contain resins, which serve
    to bind the colorant to the printing surface. Additives can include
    waxes, driers and other materials that add specific characteristics
    to an ink or to the dried ink film. Together, these ingredients
    produce the key properties of ink: visual properties, runnability
    properties and end-use performance properties. [Printing Ink: A
    Backgrounder]{.underline}, Flint Group (2006) at
    www.flintgrp.com/InkBackgrounder.pdf.

[^2]: Typical formulation for sheet-fed offset inks:

    Organic pigments 12-20 wt %

    Binders

    Hard resins 20 -25 wt %

    Soft resins and drying oil 20-30 wt %

    Mineral oils 20-30 wt %

    (bp 250 -300 °C)

    Additives 5-10 wt %

    [Ullman's Encyclopedia of Industrial Chemistry]{.underline}, Sixth
    ed., vol. 29.

[^3]: Tack: A measure of the force required to split the ink film
    between printing press rollers. It refers to the stickiness of the
    ink. Viscosity: This refers to the consistency of the ink. Viscosity
    is the property of a material by virtue of which it tends to resist
    deformation or flow. Yield Value: This measures resistance to flow.
    It is a value from the flow curve of a printing ink. Leach and
    Pierce, Ed., [The Printing Ink Manual]{.underline} (5^th^ ed.,
    1993).

[^4]: Customs Form (CF) 19 (Protest and AFR) lists the date of entry as
    6/23/04. However, CF 7501 (Entry Summary) lists the import date as
    6/27/04, and the entry date as 7/13/04.

[^5]: While the classification of dyes are not at issue in this
    decision, the Legal Note and the analysis thereof are equally
    applicable to pigments and preparations based thereon of heading
    3204, HTSUS.

[^6]: The Report incorrectly identified the product being examined, a
    preparation of viscous deep blue liquid to which oil varnishes were
    and additives will be added to produce press-ready ink, as
    "HGI-9718".

[^7]: According to Protestant the report was prepared as part of a
    ruling request that was returned for additional information.