HQ 955334: Application for Further Review of Protest No. 5501-93-100320, dated September 21, 1993 and liquidated June 25, 1993 and thereafter; plastic powder coatings; Series 49 polyester resin powder coatings; Series 69 epoxy or epoxide resin powder coatings; HRL 951239 affirmed

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 955334

                          March 10, 1995

CLA-2-CO:R:C:F 955334 EAB

CATEGORY: Classification

TARIFF NO.: 3907.30.0000; 3907.99.0050

District Director
U.S. Customs Service
P.O. Box 619050
Airport, Texas 75261-9050

Re:  Application for Further Review of Protest No. 5501-93-100320, dated September 21,
     1993 and liquidated June 25, 1993 and thereafter; plastic powder coatings; Series 49
     polyester resin powder coatings; Series 69 epoxy or epoxide resin powder coatings; HRL
     951239 affirmed

Dear Sir:

     This is a decision on a protest filed September 21, 1993, against your decision in the
classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA)
of merchandise entered in 1993 and liquidated on June 25, 1993 and during July, 1993.

FACTS:

     Series 49 polyester resin powder coatings were liquidated as entered under subheading
3907.99.0050, HTSUSA, a residual provision for polyesters in primary form, dutiable at the
column 1 general rate of 3.1 cents/kilogram plus 9 percent ad valorem.

     Series 69 epoxy resin powder coatings were liquidated as entered under subheading
3907.30.0000, HTSUSA, a provision for epoxide resins in primary form, dutiable at the column 1
general rate of 6.1 percent ad valorem.

     The protestant has notified Customs that the Series 49 powder coatings are formulated for
outdoor use and contain a polyester resin mixed with a hardener, filler, pigments (organic and
inorganic) and minimal amounts of accelerator.  The Series 69 powder coatings are formulated for
indoor use and contain an epoxy resin mixed with a hardener, filler and pigments (organic and
inorganic).  Upon formulation, a dry mixture is heat extruded to yield a homogenous melt which
is then cooled.  Once cooled, the brittle material is chipped, then ground to a fine powder.  The
fine powder is vacuum screened for predetermined particle size, then containerized for
transportation to the end user.  The end user applies the coatings as follows.  The dry powder is
pneumatically fed from a supply reservoir to a spray gun where a low amperage, high voltage
charge is imparted to the particles.  The object to be coated is grounded so that the charged
particles projected at it are strongly attracted to the surface of the object and electrostatically held
thereon until melted and fused into a smooth coating in baking ovens.

     Protestant seeks reclassification to heading 3208, HTSUSA,  (thereunder, selected
subheadings for the Series 49 and Series 69 products).  Failing that, protestant seeks
reclassification to heading 3210 for the Series 49 products and heading 3207 for the Series 69
product.

     In correspondence dated April 13, 1994, following a meeting held in the Office of
Regulations and Rulings, counsel for the protestant offered supplemental argument that the goods
were not plastics in primary form, but paints or pigments.

ISSUE:

     Whether powdered polyester resin and epoxide resin coatings are classified under the
HTSUSA as plastics in primary form or pigment preparations or paints.

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 GRIs taken in order.

     The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding
System represent the official interpretation of the Customs Cooperation Council on the scope of
each heading; although neither binding upon the contracting parties to the Harmonized System
Convention nor considered to be dispositive interpretations, they should be consulted on the
proper scope of the System.

     Heading 3907, HTSUSA, describes, inter alia, epoxide resins and (other) polyesters in
primary forms. 

     Heading 3210, HTSUSA, describes, in part, (other) paints and varnishes.

     Heading 3208, HTSUSA, describes, among other goods, paints and varnishes based on
synthetic polymers or chemically modified natural polymers, dispersed or dissolved in a non-aqueous medium.

     Heading 3207, HTSUSA, describes prepared pigments, prepared opacifiers, prepared
colors and similar preparations, of a kind used in the ceramic, enameling or glass industry, and
certain other goods not relevant to this decision.

     Note 1, Chapter 39, HTSUSA, provides as follows:

          Throughout the tariff schedule the expression "plastics" means those
          materials of headings 3901 to 3914 which are . . . capable, either at the
          moment of polymerization or at some subsequent stage, of being formed
          under external influence . . . by . . . extruding . . . into shapes which are
          retained on the removal of the external influence.

     Note 6, Chapter 39, HTSUSA, defines, for purposes of heading 3901 through 3914, the
expression "primary forms" to include liquids, pastes, dispersions, emulsions, suspensions,
solutions, blocks of irregular shape, lumps, powders, granules, flakes and similar bulk forms.

     Note 4, Chapter 32, HTSUSA, directs that solutions of the products of headings 3901
through 3914 are classified in heading 3208 only when the weight of the solvent exceeds 50
percent of the weight of the solution.  

     The ENs to heading 3207 indicate that, while the heading covers a range of preparations
used in the ceramic and glass industries and for coloring or finishing metal articles, the goods
covered by the heading are of five kinds: (1) prepared pigments, opacifiers and colors that are dry
mixtures formed by the heat treatment of metal oxides or certain salts; (2) vitrifiable enamels and
glazes that are mixtures of silica with other products; (3) semi-fluid pastes with a basis of clay
("engobes"); (4) solutions or suspensions of metal compounds in various organic solvents ("liquid
lusters"); and, (5) glass frit and all other varieties of glass in the form of powder, granules or
flakes.  Neither the Series 49 polyester resin nor the Series 69 epoxide resin fits any of the
preceding descriptors.

     Since both the Series 49 and Series 69 resins are dry powders, the condition of legal note
4, chapter 32 is not satisfied; therefore, neither product is classifiable under heading 3208.
Furthermore, the ENs to heading 3208 identify such less-than-50 percent solutions as falling in
chapter 39.

     Although heading 3210, HTSUSA, is a residual provision for paints and varnishes, EN
32.10(A), concerning paints and enamels, makes it clear that such products are only drying oils,
liquid binders containing hardener and pigment but not any solvent or other medium, and rubber
based paints as further described.  Neither of the resins involved in this Protest Review Decision is
any one of the three types of products described in the foregoing Explanatory Note.  Whereas
liquid varnishes containing no solvent do fall under heading 3210, only liquid varnishes containing
no solvent and consisting of liquid plastics and a hardener do so.  Even if it could be argued that
the Series 49 and Series 69 resins are "varnishes" if not paints, they are not liquid varnishes of
heading 3210.

     The Explanatory Note to heading 3907, HTSUSA, describes some of the uses of epoxide
resins and certain polyesters, such as "alkyd resins" and "p olyallyl esters," to include surface-coatings, coatings and varnishes.

     In HRL 951239 (August 11, 1992), this Office held that Series 49 polyester and Series 69
epoxide resin coatings were classifiable under subheadings 3907.99.0050 and 3907.30.0000,
HTSUSA, respectively.
     
     We remain of the opinion that the classification of the goods was correctly determined in
HRL 951239, supra, and upon liquidation of the entry protested herein.

HOLDING:

     The protest should be denied.

     Series 69 powder epoxy or epoxide resin is properly classified under subheading
3907.30.0000, HTSUSA, a provision that describes epoxide resins in primary form.  Merchandise
entered under the foregoing provision in 1992 was dutiable at the column one general rate of 6.1
percent ad valorem.

     Series 49 powder polyester resin is properly classified under subheading 3907.99.00.50,
HTSUSA, a residual provision for polyesters in primary form.  Merchandise entered under the
foregoing provision in 1992 was dutiable at the column one general rate of 3.1 cents/kilogram
plus 9 percent ad valorem.

     A copy of this decision should be attached to the Customs Form 19 and provided to the
protestant as a part of the notice of action on the protest.

     In accordance with section 3A(11)(b) of Customs Directive 099 3550-065, dated August
4, 1992, Subject: Revised Protest Directive, this decision should be mailed by your office to the
protestant no later than 60 days from the date of this letter.  Any reliquidation of the entry in
accordance with this decision must be accomplished prior to the mailing of this decision by your
office.  Sixty days from the date of this decision, the Office of Regulations and Rulings will take
steps to make the decision available to Customs personnel via the Customs Rulings 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