999 F.Supp. 1473 (CIT. 1998), 94-08-00478, EM Industries, Inc. v. United States

Docket Nº:Court No. 94-08-00478.
Citation:999 F.Supp. 1473
Party Name:EM INDUSTRIES, INC., Plaintiff, v. UNITED STATES, Defendant. Slip Op. 98-31.
Case Date:March 24, 1998
Court:Court of International Trade
 
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999 F.Supp. 1473 (CIT. 1998)

EM INDUSTRIES, INC., Plaintiff,

v.

UNITED STATES, Defendant.

Slip Op. 98-31.

Court No. 94-08-00478.

United States Court of International Trade.

March 24, 1998

Simons & Wiskin, Philip Yale Simons, Jerry P. Wiskin, New York City, for Plaintiff.

Frank W. Hunger, Asst. Atty. Gen., Washington, DC, Joseph I. Liebman, Attorney in Charge, Intern. Trade Field Office, Barbara M. Epstein, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice, New York City, Edward Maurer, Office of Asst. Chief Counsel, Intern. Trade Litigation, U.S. Customs Service, Spring Valley, NY, of counsel, for Defendant.

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FINDINGS OF FACT AND CONCLUSIONS OF LAW

NEWMAN, Senior Judge.

INTRODUCTION

This action concerns the proper tariff classification, and hence rate of duty, under the Harmonized Tariff Schedule of the United States ("HTSUS") for "pearlescent pigments" imported by E.M. Industries, Inc., plaintiff in this action, from Germany in 1992-93. Two types of pearlescent pigments are involved: mica coated with titanium dioxide and mica coated with iron oxide. 1

The mica-based pigment coated with titanium dioxide was classified by the Customs Service ("Customs") under subheading 3206.10.00, HTSUS, as "pigments or preparations based on titanium dioxide." The mica-based pigment coated with iron oxide was classified under subheading 3206.49.20, HTSUS, as "other coloring matter and other preparations ... other ... preparations based on iron oxide."

There is no dispute between the parties that the pearlescent pigments are properly classifiable under HTSUS Heading 3206. Plaintiff, however, claims that the merchandise is outside the scope of the specific subheadings of Heading 3206 under which they were classified by Customs and that all of the pearlescent pigments are properly dutiable under the residual or "basket" subheading 3206.49.50, HTSUS, as "Other," (under "other coloring matter and other preparations").

The court has jurisdiction pursuant to 28 U.S.C. § 1581(a). At a bench trial, three witnesses testified for plaintiff and one witness testified on behalf of defendant. The record also includes numerous exhibits. After careful review of the testimony of record, exhibits, and briefs of counsel, the court concludes that Customs' classifications are incorrect and that plaintiff's claim should be sustained.

FINDINGS OF FACT

1. The subject merchandise, pearlescent or synthetic nacreous pigments, consist of platelets having a micaceous substrate coated with a thin film or layer of either titanium dioxide or iron oxide.

2. The platelets are transparent, consist of alternating layers of materials with a high and low refractive index, and in addition to exhibiting color, simulate the nacreous luster of natural pearls.

3. "The characteristics of nacreous pigments are inherent in the physical properties of the pigment particles." Pltf's Exh. C attached to Reply Mem., at p. 829. For instance, the interference color effect of pearlescent pigments arises from a physical structure of uniform, thin layers of the pearlescent pigment particle's constituents rather than from discrete metal oxide pigment particles.

4. Such physical properties of pearlescent pigments as platelet transparency or opacity, length, diameter, platy shape, thickness, smooth surfaces, high refractive index, are all non-chemical or physical properties that bear on the unique visual characteristics of pearlescent pigments. "The effects which are produced by pearlescent pigments are intimately connected to optics and the interaction of light with matter." See Pltf's Exh. D, p. 1.

5. As a result of reflection and refraction of light, synthetic nacreous pigments possess a pearl-like luster ("pearlescence"), and also, depending upon the thickness of the metal oxide layer, they can also exhibit interference color effects. Pltf's Reply Mem., Exh. A. A unique characteristic of pearlescent pigments is that their color effects are angle-dependent (depend on the viewing angle).

6. Unlike pigment grade or "pigmentary" titanium dioxide and iron oxide, the physical properties of pearlescent pigment particles are based on the platy shape of the mica substrate. These mica substrates result from grinding natural mica into small platelets.

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Mica, the particles of which have the desired platiness but inadequate refractive index, contributes its geometric shape to the metal oxide layer which has the requisite refractive index but does not spontaneously occur in the requisite platelike form. To produce the optical effect of imitating pearls, i.e., producing a pearly luster, pearlescent pigments must have platy-shaped pigment particles.

7. Layers of titanium dioxide and iron oxide are not directly deposited on the mica substrates, but rather the metal oxide layers result from chemical reactions of certain precursor or intermediate chemical compounds. 2

8. To produce colors by "constructive interference" (an optical property of pearlescent pigments), it is necessary for the mica substrate and the metal oxide coating materials to have different indices of refraction in order to create "boundaries" from which light can be reflected. The "boundaries" essential to interference colors produced by substances with different indices of refraction require both the low refractive index substrate and a high refractive index coating material. 3 As previously noted, the mica substrate also provides the proper geometric shape to the pigment platelet (including the shape of the metal oxide coatings) and provides the platelets with the necessary mechanical strength essential to the pearlescent pigment's commercial use. 4 In pearlescent pigments both the thin film metal oxide layer and mica substrate are essential constituents to the unique optical properties of pearlescent pigments.

9. Pearlescent pigments are known as "effect" pigments because they have the unique optical property of pearlescence as well as color. The pearl effect requires the platy shape of the pearlescent pigment particle, which in turn requires the platy-shaped mica substrate. Both pearlescence and constructive interference involve an extremely close physical and functional interface, and unitary, integral and interdependent relationship of the mica substrate and coating material in the pigment particles.

10. The pearlescent pigment's luster or pearlescence, results from different optical phenomena than those involved in the production of color. Pearl luster is produced by reflection of light from the top surface of the pearlescent pigment particles which are oriented in a layered arrangement, whereas the colors produced by a pearlescent pigment (interference colors) result from the constructive interference of light from reflection at internal boundaries within each pearlescent pigment particle (which result from the disparity between indices of refraction of the mica substrate and the coating material).

11. Interference colors may be controlled by varying the geometric thickness of the metal oxide film ( i.e., the controlled thickness of the coating materials on the substrate). Thus, if the layers of titanium dioxide or iron oxide are very thin, a white pearl reflection color is produced; increasing the layer thickness gives gold, red, blue and green reflection colors in order of increasing layer thickness.

12. The phenomena underlying the properties of pearlescence and constructive interference of light are not present in the traditional pigmentary forms of the named metal oxides. Moreover, a unique optical property of pearlescent pigments is their ability to show multiple color effects: they can show

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two different colors when viewed at two different angles. Pltf's Exh. 8.

13. Physically ( i.e., particle size, shape, structure) and functionally titanium dioxide and iron oxide are altogether different in the pigmentary forms of the metal oxides and in the thin film layers of mica-based pearlescent pigments. Pigmentary titanium dioxide, for example, is a white, opaque, discrete, spherical particle capable of scattering light that strikes the pigment particle to produce a white color; the titanium dioxide coating over the mica substrate of a pearlescent pigment is a thin transparent film which reflects or transmits light. Iron oxide in pigmentary form is red, opaque, absorbs certain wavelengths of light and reflects others, and otherwise physically and functionally differs from the thin film of iron oxide coated on mica in a pearlescent pigment. 5 The pigmentary forms of the metal oxides produce color by absorption while pearlescent pigments produce color by constructive interference.

14. Unlike...

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