HQ W967669

April 17, 2008

# 

# CLA-2 OT:RR:CTF:TCM W967669 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. 3901-05-100154;
HGI-4261, Pantone B Micro Reflex Blue

Dear Port Director:

This is our decision on the Application for Further Review ("AFR") of
Protest No. 3901-05-100154, timely filed by counsel on behalf of Micro
Inks Corporation ("Micro Inks"), concerning the classification of
"Pantone base ink" 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 a written submission, dated October 23, 2007.

**FACTS:\
**

The merchandise at issue is HGI-4261[^1], Pantone B Micro Reflex Blue,
is described by Protestant as sheet-fed Pantone "base ink". According to
the submitted information, Pantone base inks are sold to manufacturers
and distributors who use them for color blending purposes. The inks are
designed for use in connection with the Pantone Formula Guide, which
provides an accurate method for creating inks that meet the requirements
of the Pantone Color Matching System, an international ink color
standard. Per the Pantone website, "the Pantone Formula Guide, a
three-guide set consisting of 1,114 solid PANTONE Colors on coated,
uncoated and matte stock, shows corresponding printing ink formulations
for each color". [See]{.underline} www.pantone.com, "About Us".
Protestant states that the subject merchandise is used to create Pantone
Color 2738C, the formula for which constitutes a mixture of HGI-4261 and
HGI-4259 (not at issue).

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 maybe 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.
[See]{.underline} [Printing Ink: A Backgrounder]{.underline}, Flint
Group (2006) at www.flintgrp.com/InkBackgrounder.pdf.

According to [Ink World]{.underline} magazine:

> Generally speaking, offset inks are oil-based paste inks, are highly
> viscous, and use varnish systems consisting of resins that dry either
> by oxidation or heat evaporation. Pigment concentration is relatively
> high, as the ink is applied in a very thin film of approximately 3
> microns. The ink must have some compatibility with water, since water
> is used to keep the non-image areas of the plate clean.

Sheet-fed offset inks dry via oxidation. [See]{.underline}
www.inkworldmagazine.com/ inkprimer.php. The typical formulation for
sheet-fed offset inks is:

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.

According to the submitted information, HGI-4261- Pantone--B Micro
Reflex Blue contains less than 20 percent pigment, between 73 and 80
percent resins and oils, and less than 4 percent additives.

The merchandise was entered on September 10, 2004, 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 22, 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 February 9, 2005.

**ISSUE:**

What is the correct classification of Micro Inks product HGI-4261?

**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 HGI-4261 is a complete printing
ink and that the merchandise is commonly and commercially known as ink.
As such, Protestant asserts that HGI-4261 is 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.

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

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 sheet-fed offset
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 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."[^2] 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.

Counsel argues that the imported merchandise exhibits specific ink
properties such as tack, viscosity, yield value, water pick up, flow
drying properties and transfer properties. Any post importation
processing merely adjusts the characteristics of the product to satisfy
specific customer requirements. Further, the product is converted into
press-ready ink by simple dilution. As such, counsel contends that the
subject merchandise is concentrated ink as described by EN 32.15(A) and
should be classified as printing ink under heading 3215.

After comparing the properties of the imported product to the typical
properties of sheet-fed ink, 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 product HGI-4261 is classified in
heading 3215, HTSUS. It is 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]: According to the Micro Inks website, products with the prefix
    "HGI" are pigments designated as being for "colouration of printing
    inks". [See]{.underline} www.microinks.com.

[^2]: 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.