Govesan America Corp. v. United States

Slip Op. 01-119

United States Court of International Trade

GOVESAN AMERICA CORP.,

Plaintiff,
BEFORE: Pogue, Judge
v.
Consol. Court No. 97-10-01833
UNITED STATES,

Defendant.

[Plaintiff’s motion for summary judgment denied. Defendant’s
cross-motion for summary judgment granted. Judgment entered for
Defendant.]

Decided: September 28, 2001

Ross & Hardies (Joseph S. Kaplan, Joshua P. Rubin); Caramagno &
Griffin (William L. Griffin), Of Counsel, for Plaintiff.

Robert D. McCallum, Jr., Assistant Attorney General, Joseph I.
Liebman, Attorney in Charge, International Trade Field Office,
Mikki Graves Walser, Attorney, Commercial Litigation Branch, Civil
Division, U.S. Department of Justice; Chi S. Choy, Office of
Assistant Chief Counsel, International Trade Litigation, U.S.
Customs Service, Of Counsel, for Defendant.

OPINION

Pogue, Judge: Plaintiff, Govesan America Corp. (“Govesan”),

challenges a decision of the United States Customs Service

(“Customs”) denying Plaintiff’s protests filed in accordance with

section 514 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1514

(1994). At issue is the proper tariff classification under 19

U.S.C. § 1202, Harmonized Tariff Schedule of the United States

(“HTSUS”), of Plaintiff’s imports of powder paints from Spain.

Plaintiff claims that the subject merchandise is classifiable
Consol. Court No. 97-10-01833 Page 2

under subheading 3210.00.00, HTSUS, as “[o]ther paints and

varnishes (including enamels, lacquers and distempers); prepared

water pigments of a kind used for finishing leather.” Merchandise

classifiable under heading 3210 is subject to a 1.8% ad valorem

duty rate. Customs liquidated the merchandise under heading 3907,

HTSUS, as “Polyacetals, other polyethers and epoxide resins, in

primary forms; polycarbonates, alkyd resins, polyallyl esters and

other polyesters, in primary forms.” The imported powders exist in

three basic forms: epoxy-based, polyester-based and epoxy-polyester

hybrids. The powders consisting principally of epoxide resins were

classified under subheading 3907.30.00, HTSUS, which covers,

“Polyacetals, other polyethers and epoxide resins, in primary

forms: Epoxide resins,” dutiable at a rate of 6.1% ad valorem; the

powders consisting principally of polyester were classified under

subheading 3907.99.00 HTSUS, which covers, “polycarbonates, alkyd

resins, polyallyl esters and other polyesters, in primary forms:

Other,” dutiable at a rate of 2.2¢/kg plus 8.2% ad valorem. Hybrid

resins were classified under subheadings 3907.30.00 or 3907.99.00,

depending upon which resin (that is, epoxy or polyester)

predominated by weight.

This court has jurisdiction pursuant to 28 U.S.C. §

1581(a)(1994). Customs’ classification is subject to de novo

review pursuant to 28 U.S.C. § 2640. Before the Court are cross-

motions for summary judgment made by Plaintiff and Defendant, the
Consol. Court No. 97-10-01833 Page 3

United States, pursuant to USCIT Rule 56.

Standard of Review

Under USCIT Rule 56, summary judgment is appropriate “if the

pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” USCIT R. 56(c); see

also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986);

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The court analyzes a Customs classification issue in two

steps: “first, [it] construe[s] the relevant classification

headings; and second, [it] determine[s] under which of the properly

construed tariff terms the merchandise at issue falls.” Bausch &

Lomb, Inc. v. United States, 148 F.3d 1363, 1365 (Fed. Cir. 1998)

(citing Universal Elecs., Inc. v. United States, 112 F.3d 488, 491

(Fed. Cir. 1997)). Whether the subject merchandise is properly

classified is ultimately a question of law.1 See id. Summary

1
Customs decided this case based on a standard
classification ruling and did not utilize notice and comment
procedures. Following the Supreme Court’s holding in United
States v. Mead Corp., 121 S. Ct. 2164 (2001), the Court does not
afford the deference articulated in Chevron U.S.A. Inc. v.
Natural Resources Defense Council, 467 U.S. 837, 843-45 (1984),
to Customs’ standard classification rulings. Cf. United States
v. Haggar Apparel Co., 526 U.S. 380, 389 (1999). Accordingly the
Court defers to Customs’ classification ruling only to the extent
it has the power to persuade. See Heartland By-Products, Inc. v.
United States, slip op. 00-1287, 00-1289 (Fed. Cir. Aug. 30,
Consol. Court No. 97-10-01833 Page 4

judgment of a classification issue is therefore appropriate “when

there is no genuine dispute as to the underlying factual issue of

exactly what the merchandise is.” Id.

The merchandise at issue is synthetic thermosetting2 polymer-

based3 powder paint, or powder coating.4 See Pl.’s Mem. Supp. Mot.

Summ. J. at 4 (“Pl.’s Mem.”); Esquivel Decl. at ¶11. The parties

agree that the powder paints are made of epoxy resins, polyester

resins, or a combination of epoxy and polyester (“hybrid”) resins5

2001). Moreover, although there is a statutory presumption of
correctness that attaches to Customs’ classification decisions,
see 28 U.S.C. §2639 (a)(1), that presumption is not relevant
where the Court is presented with a question of law in a proper
motion for summary judgment. See Universal Elecs., 112 F.3d at
492.
2
Thermoset describes “any of a group of polymers that soften
when initially heated, then harden and condense in bulk and
retain a permanent shape; they cannot be softened or reprocessed
by reheating.” Academic Press Dictionary of Science and
Technology 2206(1992).
3
A polymer is a “[s]ubstance made of giant molecules formed
by the union of simple molecules . . . .” McGraw-Hill Dictionary
of Scientific and Technical Terms 1462 (4th ed. 1989).
4
“Powder paints” and “powder coatings” are used
interchangeably by both parties to describe the merchandise.
See Pl.’s Mem. at 13; Bierwagen Aff. at ¶7; Rodriguez-Maceda Aff.
at ¶19.
5
Resins are “any natural or synthetic organic compound
consisting of a noncrystalline or viscous liquid substance.” The
New Encylopedia Britannica Vol. 9, 1038 (15th ed. 1986).
Generally, the term resin is used “to designate any polymer that
is a basic material for plastic.” IUPAC Congress/General
Assembly, Definition of Terms Relating to Reactions of Polymers
and to Functional Polymeric Materials, at 2.2 (July 2001),
available at http://www.iupac.org.html; see also Van Nostrand’s
Scientific Encyclopedia 2240, 2428 (7th ed. 1989); McGraw-Hill,
supra note 3, at 1604. As a component of powder paints, resins
Consol. Court No. 97-10-01833 Page 5

in primary forms, together with pigments, extenders, modifiers, and

cross-linkers or curing agents. See Pl.’s Stmt. Undisputed Facts

(“Pl.’s Stmt.”) at ¶18; Def.’s Resp. Pl.’s Stmt. (“Def.’s Resp.”)

at ¶18.

The parties also agree that powder paints are produced in a

three-part manufacturing process involving blending, melting

(extrusion), and grinding together all of the aforementioned

components. See Pl.’s Stmt. at ¶¶24-27; Def.’s Resp. at ¶¶24-27.

Furthermore, the parties agree that powder paints are applied to

the substrate6 with an electrostatic spray nozzle/gun.7 The powder

particles are charged electrostatically at the tip of the spray

nozzle/gun and cling to the substrate, which has the opposite

charge. See Pl.’s Stmt. at ¶8; Def.’s Resp. at ¶8. Heat is

required to “cure” the applied powder paint, resulting in a

thermoset coating. See Pl.’s Stmt. at ¶34; Def.’s Resp. at ¶31;

Esquivel Dec. at ¶11. The primary purpose of the powder paint is

to form this protective coating. See Pl.’s Stmt. at ¶¶30-31;

Def.’s Resp. at ¶¶30-31.

help with adhesion, disperse pigment, and “tend to promote good,
integral, functional properties, such as impact resistance.”
Figlioti Dep. at 63.
6
A substrate is the “[b]asic surface on which a material
adheres, for example, paint or laminate.” McGraw-Hill, supra
note 3, at 1850.
7
Defendant refers to the electrostatic charging device as a
“spray gun”; Plaintiff refers to it as a “spray nozzle.” See
Pl.’s Stmt. at ¶30; Def.’s Resp. at ¶30.
Consol. Court No. 97-10-01833 Page 6

Both parties agree on what constitutes the basic components of

the paint and how it is used. Although the parties disagree as to

whether the powder coating is “principally” made of plastic,8 our

analysis leads us to conclude that there is no genuine issue of

material fact regarding the composition of the subject merchandise

and summary judgment, in favor of the Defendant, is appropriate.

Discussion

The HTSUS consists of (A) the General Notes; (B) the General

Rules of Interpretation; (C) the Additional U.S. Rules of

Interpretation; (D) sections I to XXII, inclusive (encompassing

chapters 1 to 99, and including all section and chapter notes,

article provisions, and tariff and other treatment accorded

thereto); and (E) the Chemical Appendix.

The General Rules of Interpretation (“GRI”) to the HTSUS

govern the proper classification of all merchandise. See Carl

Zeiss, Inc. v. United States, 195 F.3d 1375, 1379 (Fed. Cir. 1999).

GRI 1 is the first rule for determining classification cases and

states, “for legal purposes, classification shall be determined

according to the terms of the headings and any relative section or

8
Whether the subject merchandise consists principally of
plastic is at issue because the Explanatory Note to Chapter 3210
specifically excludes “powder paints consisting principally of
plastics,” and refers to Chapter 39, which covers “Plastics and
Articles thereof” as the proper chapter for classification of
such merchandise. See discussion infra note 13 and pp. 15-17.
Consol. Court No. 97-10-01833 Page 7

chapter notes . . . .” GRI 1, HTSUS; see also Orlando Food Corp.

v. United States, 140 F.3d 1437, 1440 (Fed. Cir. 1998); Harmonized

Commodity Description and Coding System, Explanatory Notes (2d ed.

1996) (“Explanatory Notes”) at GR 1(V) (“[T]he terms of the

headings and any relative Section or Chapter Notes are paramount,

i.e., they are the first consideration in determining

classification.”). If the meaning of a term is in dispute, then

the correct meaning is determined by the term’s common meaning.

See Sarne Handbags Corp. v. United States, 24 CIT __, __, 100 F.

Supp. 2d 1126, 1133 (2000). To determine the common meaning of a

tariff term, the court may “rely upon its own understanding of the

terms used, and it may consult lexicographic and scientific

authorities, dictionaries, and other reliable information.” Baxter

Healthcare Corp. of Puerto Rico v. United States, 182 F.3d 1333,

1338 (Fed. Cir. 1999) (quoting Brookside Veneers, Ltd. v. United

States, 847 F.2d 786, 789 (Fed. Cir. 1988)). A term’s common and

commercial meanings are presumed to be the same. See Carl Zeiss,

Inc., 195 F.3d at 1379.

I. The subject merchandise is classifiable as “resins in primary
form” under heading 3907, HTSUS.

The terms of heading 3907, the Chapter Notes to Chapter 39,

and the relevant Explanatory Note make clear that powder paints are

prima facie classifiable under heading 3907, HTSUS. Heading 3907

includes “[p]olyacetals, other polyethers and epoxide resins, in
Consol. Court No. 97-10-01833 Page 8

primary forms: Epoxide resins,” 3907.30.00, HTSUS, and

“polycarbonates, alkyd resins, polyallyl esters and other

polyesters, in primary forms: Other,” 3907.99.00, HTSUS. Powder

paints have as their main ingredient polymer resins that are either

epoxy-based, polyester-based, or epoxy-polyester hybrids. See

Def.’s Stmt. Material Facts (“Def.’s Stmt.”) at ¶10; Pl.’s Resp.

Def.’s Stmt. (“Pl.’s Response”) at ¶10.

The Chapter Notes to Chapter 39 explain that resins in powder

form are resins in “primary form.” Chapter 39, Note 6, HTSUS

(explaining that the expression “primary forms” can apply to

powders). The relevant Explanatory Note clarifies that, for

purposes of Chapter 39, primary form powders:

may consist of [] unplasticised materials which become
plastic in the moulding and curing process . . . ; these
materials may incorporate fillers . . . , colouring
matter or other substances cited in Item (1) above.
Powders may be used, for example, to coat objects by the
application of heat with or without static electricity.

Explanatory Notes at 597.9 The additional materials cited in Item

9
The Explanatory Notes “provide a commentary on the scope of
each heading of the Harmonized [Tariff] System and are thus
useful in ascertaining the classification of merchandise under
the system.” H.R. Conf. Rep. No. 100-576, at 549 (1988),
reprinted in 1988 U.S.C.C.A.N. 1547, 1582. It has long been
established that, “[w]hile the Explanatory Notes do not
constitute controlling legislative history, they do offer
guidance in interpreting HTS[US] subheadings.” Lonza, Inc. v.
United States, 46 F.3d 1098, 1109 (Fed. Cir. 1995)(internal
citations omitted); Russell Stadelman & Co. v. United States, 23
CIT , , 83 F. Supp. 2d 1356, 1359 n.6 (1999)(noting that
Explanatory Notes help to define Congress’s intended meaning of a
tariff term), aff’d, 242 F.3d 1044 (Fed. Cir. 2001).
Consol. Court No. 97-10-01833 Page 9

1 include “substances necessary for [curing,] such as hardeners

(cross-linking agents)” and “other materials such as plasticisers,

stabilisers, fillers and colouring matter, chiefly intended to give

the finished products special physical properties or other

desirable characteristics.” Id. at 596.

Although Plaintiff and Customs agree that resins in primary

form are the main ingredient of the powder paints, Plaintiff claims

that once all the constituent materials -- the resins, pigments,

extenders and modifiers, and cross-linkers -- are melted together

and passed through the extruder, the resins are “consumed.” See

Pl.’s Stmt. at ¶25-26. As a result, according to Plaintiff, the

resins no longer exist in primary form. See id. at ¶42. Plaintiff

further states that because other ingredients are necessary to the

composition of the merchandise, the merchandise is “more than” just

resins in primary form. See Pl.’s Mem. at 6-7.

All of the materials in the powder paint are accounted for in

the Explanatory Note, refuting Plaintiff’s argument that the

merchandise cannot be classified as a primary form because it is

“more than” just resins. Also, merely because materials other than

resins are necessary ingredients of powder paints does not, as

Plaintiff suggests, mean that the resins are not in primary form.

Here the pigments impart color and the fillers produce desired

shades and hues, see Pl.’s Stmt. at ¶18, and thus serve only to

give the finished powder paint “special physical properties or
Consol. Court No. 97-10-01833 Page 10

other desirable characteristics,” as contemplated by the

Explanatory Note.10 Explanatory Notes at 596.

Moreover, substances necessary for curing, such as the cross-

linkers, are also specifically provided for by the Explanatory

Note. See id. Both Plaintiff and Customs agree that although in

the extrusion process the resins and cross-linkers are melted, the

extrusion process is strictly controlled so that just enough heat

is added to allow the pigments and extenders to be thoroughly

dispersed throughout the powder paint, without causing the resins

to cross-link.11 See Esquivel Decl. at ¶9(b); see also Pl.’s Mem.

at 8, Def.’s Reply Pl.’s Mem. at 17 (“Def.’s Mem.”).12 It is during

the thermosetting process that resins cross-link, and this process

does not occur until the applied powder paints are cured. See

10
Plaintiff refers to powder coatings as “polymers which
generally contain pigments, fillers and additives.” Govesan
America Corp, Powder Coating Seminar, at Chap. 10, Def. App. At
Ex. 5. The emphasis on “polymers” as the primary ingredient
further supports this court’s analysis that the powder paints are
resins in primary form.
11
Cross-linking is defined as “the attachment of chains of a
polymer to one another to make the polymer into a single network
with increased strength and resistence to solvents.” Academic
Press Dictionary, supra note 2, at 551.
12
Plaintiff and Customs agree on the powder paint’s three-
step manufacturing process, citing extensively to the declaration
of Juan Esquivel, the Chief Chemist and Laboratory Director of
Govesan, S.A., in support of their understanding of this
manufacturing process. See Pl.’s Brief passim; Def.’s Brief
passim. The parties do not, however, agree on how to define
“primary form,” which is a question of law for the Court to
decide.
Consol. Court No. 97-10-01833 Page 11

Esquivel Decl. at ¶11. Because the resins only become cross-linked

as part of the curing process, they are not “consumed” in the

extrusion process, but rather may, although part of a finished,

manufactured product, be considered “resins in primary form,” as

that tariff term is properly interpreted.13 See Explanatory Note

at 597 (noting that powders in primary form contain “unplasticised

materials which become plastic in the moulding and curing

process”); see also Expancel, Inc. v. United States, slip op. 00-

19, at 6 n.5 (CIT Feb. 18, 2000) (holding that finished products

may be considered primary forms); HQ 951239 (Aug. 11, 1992)

(concluding that polyester/epoxy powder coatings like those at

13
Chapter Note 1 to Chapter 39 provides further support for
the conclusion that the powder paints at issue are properly
classified under heading 3907, HTSUS. Chapter 39 covers
“Plastics and Articles thereof”; Chapter Note 1 defines
“plastics” as “those materials of headings 3901 to 3914 which are
or have been capable either at the moment of polymerisation or at
some subsequent stage, of being formed under external influence
(usually heat and pressure, if necessary with a solvent or
plasticiser) by moulding, casting, extruding, rolling or other
process into shapes which are retained on the removal of the
external influence.” Chapter 39, Note 1, HTSUS. The powder
paints, as “polyacetals, other polyethers and epoxide resins, in
primary forms: Epoxide resins,” under 3907.30.00, HTSUS, and
“polycarbonates, alkyd resins, polyallyl esters and other
polyesters, in primary forms: Other” under 3906.99.00, HTSUS, are
“materials of headings 3901 to 3914.” Id. The powder coatings
contain thermosetting resins that are capable of being processed
into a shape which is retained upon the removal of the external
heat influence. See Esquivel Decl. at ¶11; see also Pl.’s Reply
Br. at 13, 20; Def.’s Mem. at 18. Moreover, the Encyclopedia
Britannica considers resins “not clearly differentiated from
plastics.” The New Encyclopedia Britannica, supra note 5, at Vol.
9, 1038. Thus, the powder coatings are properly included in the
statutory definition of “plastics.”
Consol. Court No. 97-10-01833 Page 12

issue here meet the definition of the term “primary form”).

As additional support for this conclusion, the Explanatory

Note describes exactly how the subject merchandise is used: the

powder paint coats objects through the application of heat and

static electricity. See Explanatory Notes at 597. Also, the

Explanatory Notes to heading 3907 describe some of the uses of

epoxide resins and certain polyesters, such as “alkyd resins” and

“polyallyl esters,” to include surface-coatings, coatings and

varnishes. See id. at 607; see also HQ 955334 (Mar. 10, 1995).14

It is clear from the terms of heading 3907, HTSUS, and the

relevant Chapter and Explanatory Notes that Customs correctly

classified powder coatings as “resins in primary form” under

heading 3907, HTSUS.

II. Whether powder paints are also classifiable under 3210, HTSUS

Plaintiff suggests that powder paints are classifiable as

“other paints” pursuant to 3210, HTSUS. We find that the subject

merchandise is not prima facie classifiable under 3210, HTSUS, and

thus we need not conduct a GRI 3 analysis to address whether

14
As discussed infra, the Explanatory Notes to subheading
3210, HTSUS, exclude these powder paints, specifically referring
to Chapter 39 as the proper chapter for classification of the
type of merchandise at issue. Subheading 3907, HTSUS, is the
only possible heading under which the powder paints at issue
could be classified in Chapter 39.
Consol. Court No. 97-10-01833 Page 13

heading 3907, HTSUS, or heading 3210, HTSUS, is more specific.15

The parties disagree over the meaning of the term “paint.”

The meaning of a tariff term is a question of law. See Brookside

Veneer Ltd., 847 F.2d at 788. Nowhere in the statute or the

legislative history is the term “paint” defined. We must therefore

look to the common meaning of “paint” as defined by dictionaries,

lexicographic and scientific authorities and other reliable

sources. See Baxter Healthcare, 182 F.3d at 1338.

Plaintiff claims that paint is not limited to substances in

15
GRI 3 provides:

When, by application of rule 2(b) or for any other
reason, goods are, prima facie, classifiable under two
or more headings, classification shall be effected as
follows:
(a) The heading which provides the most specific
description shall be preferred to headings providing a
more general description. However, when two or more
headings each refer to part only of the materials or
substances contained in mixed or composite goods or to
part only of the items in a set put up for retail sale,
those headings are to be regarded as equally specific in
relation to those goods, even if one of them gives a
more complete or precise description of the goods.
(b) Mixtures, composite goods consisting of
different materials or made up of different components,
and goods put up in sets for retail sale, which cannot
be classified by reference to 3(a), shall be classified
as if they consisted of the material or component which
gives them their essential character, insofar as this
criterion is applicable.
(c) When goods cannot be classified by reference to
3(a) or 3(b), they shall be classified under the heading
which occurs last in numerical order among those which
equally merit consideration.

GRI 3, HTSUS.
Consol. Court No. 97-10-01833 Page 14

liquid form. According to Van Nostrand’s Scientific Encyclopedia,

supra note 5, at 2117, “paint” is a term “used to describe a wide

variety of materials designed to adhere to a substrate and act as

a thin, plasticlike layer.” This court has previously accepted

this definition of paint, as well as that portion of the Van

Nostrand’s definition that explains that “[p]aints are available

for decorative, protective and other purposes. . . . Protective

uses include shielding metals from corrosion [and] protecting

plastics from degradation caused by ultraviolet light . . . .”16

General Motors Corp. v. United States, 15 CIT 372, 379, 770 F.

Supp. 641, 647 (1991)(internal quotations and citations omitted),

rev’d on other grounds, 976 F.2d 716 (Fed. Cir. 1992)). Plaintiff

argues that according to these definitions, paint does not require

a liquid medium.

Defendant, on the other hand, offers alternative dictionary

definitions that do require “paints” to be in liquid form.

According to McGraw-Hill, supra note 3, at 1356, paint is “[a]

mixture of a pigment and a vehicle, such as oil or water, that

together form a liquid or paste that can be applied to a surface to

provide an adherent coating that imparts color to and often

16
The powder paints at issue are used to coat objects for
industrial purposes, providing protection from environmental
elements that would otherwise cause the substrate to rust or
deteriorate. See Rodriguez-Maceda Aff. at ¶13. Govesan also
produces powder coatings which provide ultra-violet protection
and corrosion resistance. See Pl.’s Mem. at Ex. 2.
Consol. Court No. 97-10-01833 Page 15

protects the surface.” The Merriam Webster’s Collegiate Dictionary

& Thesarus, available at http://www.m-w.com.html (“Merriam

Webster”), defines paint in relevant part as, “a mixture of a

pigment and a suitable liquid to form a closely adherent coating

when spread on a surface in a thin coat . . . .”

The Court is unable to discern the proper meaning of the term

“paint” from these dictionary definitions. We therefore turn to

the Explanatory Notes, see supra note 9, to clarify the meaning of

that tariff term.

The Explanatory Note to heading 3210 excludes “[p]owder paints

consisting principally of plastics and containing additives and

pigments, used for application of static electricity” from that

heading, and indicates that such merchandise is properly classified

under Chapter 39. Explanatory Notes at 498 (emphasis added). In

H.I.M./Fathom, Inc. v. United States, the court held that the

Explanatory Notes are “persuasive authority for the Court when they

specifically include or exclude an item from a tariff heading.”

H.I.M./Fathom, 21 CIT 776, 779, 981 F. Supp. 610, 613 (1997)

(citing Bausch & Lomb, 21 CIT at 174-75, 957 F. Supp. at 288).

Applied here, the effect of the Explanatory Notes is to

specifically exclude powder paints such as those at issue from the

tariff heading: the subject merchandise consists of plastics,

contains additives and pigments, and is applied through an

electrostatic spray nozzle/gun. Moreover, the paints that are
Consol. Court No. 97-10-01833 Page 16

specifically included in the Explanatory Note to heading 3210 all

require an aqueous, non-aqueous, or simply “liquid” medium.17 See

Explanatory Notes at 496; see also HQ 085594 (Jan. 29, 1990)

(concluding that to be included in heading 3210, goods must be

“dispersed in a liquid medium”).

Plaintiff and Defendant disagree as to whether the powder

paints consist principally of plastics. See Def.’s Stmt. at ¶10;

Pl.’s Resp. at ¶10. As previously discussed, the subject

merchandise is considered a plastic for classification purposes,

and resins give the subject merchandise its plastic character.

Resins are the largest single component of the subject merchandise,

which contains more than fifty percent resins by weight. See

Def.’s Stmt. at ¶10; Esquivel Decl. at ¶10 (tables).18 Because

these resins are the main ingredient of the powder paints, the

17
“Aqueous” means “[r]elating to or made with water.” See
McGraw-Hill, supra note 3, at 114. “Nonaqueous” means
“[p]ertaining to a solution or liquid containing no water.” See
id. at 1280.
18
According to Juan Esquivel’s declaration the powder paints
contain, approximately, the following amount of resins, by
weight:

REB-8463 Epoxy Resin 58%
REB-6484 Epoxy Resin 57%
RPB-885 Polyester Resin 59%
RPB-6358 Polyester Resin 57%
RHB-754 (hybrid) Polyester Resin 34% Epoxy Hardner 22%
RHB-579 (hybrid) Polyester Resin 56% Epoxy Hardner 37%

Esquivel Decl. at ¶10 (tables).
Consol. Court No. 97-10-01833 Page 17

subject merchandise consists “principally” of plastics.19

In this case, the Explanatory Notes control our understanding

of the tariff term “paint,” and lead us to conclude that the powder

paints at issue are not properly considered “paint” for

classification purposes. Consequently, the subject merchandise is

not prima facie classifiable under heading 3210, HTSUS.

19
Plaintiff argues that the powder paints “are not
’principally’ comprised of epoxide, polyester, or hybrid resins
even if the principal ingredient used to manufacture each coating
is a polymer” because “[t]here is no primary or key ingredient
which characterizes powder coatings.” Pl.’s Resp. at ¶ 10. This
argument improperly tries to import the essential character
analysis of GRI 3(b) by focusing on the “key ingredient” of the
powder paints, rather than the ingredient that comprises the
majority of the subject merchandise. “Principally,” in this
case, means the chief ingredient. See Merriam Webster, supra
page 15. Although the subject merchandise has a unique
combination of ingredients, the interaction of all of which are
necessary to the function of the powder paint, see Figlioti Dep.
at 56-57, resins make up the largest percentage of the goods by
weight. Therefore, the powder paints are primarily plastics, in
the form of resins that can be heated in order to hold their
shape. Consistent with this view, Customs originally classified
the hybrid resins in accordance with which resin -- epoxy or
polyester -- was principal, i.e., predominated by weight. See
Chapter 39, Note 4, HTSUS. Plaintiff’s essential character
analysis is therefore irrelevant.
Consol. Court No. 97-10-01833 Page 18

III. Whether parts of the affidavits or declarations submitted by
Plaintiff should be stricken.

To the extent that the affidavits and declarations contain

legal arguments and conclusions of law, this Court treats them as

argument or disregards them as appropriate.

Conclusion

Pursuant to GRI 1, we find that the powder paints at issue are

classifiable as “resins in primary form” under heading 3907, HTSUS,

and are not classifiable as “other paint” under heading 3210,

HTSUS. Summary judgment is accordingly granted for the Defendant.

Donald C. Pogue
Judge

Dated: September 28, 2001
New York, New York
 Slip Op. 01-119

United States Court of International Trade

GOVESAN AMERICA CORP.,

Plaintiff,
BEFORE: Pogue, Judge
v.
Consol. Court No. 97-10-01833
UNITED STATES,

Defendant.

Judgment

This action has been duly submitted for decision, and this

Court, after due deliberation, has rendered a decision herein; now,

in conformity with that decision, it is hereby

ORDERED that Defendant’s motion for summary judgment is

granted; and it is further

ORDERED that Plaintiff’s motion for summary judgment is denied

and a final judgment is entered for Defendant.

Donald C. Pogue
Judge

Dated: September 28, 2001
New York, New York