CLA-2 RR:CR:GC 966933 NSH
Port Director
330 2nd Avenue South
Suite 560
Minneapolis, MN 55401
RE: Protest 3501-03-100028; Paint dispersion devices
Dear Port Director:
This is our decision on Protest 3501-03-100028, filed by counsel on behalf of Wagner Spray Tech Corporation, against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of paint dispersion devices. The entries under protest were liquidated on April 11, 2003 under subheading 9603.40.2000, HTSUS, and this protest was timely filed on June 17, 2003.
FACTS:
The merchandise at issue are four paint/stain applicator and dispersion models for use in home improvement and maintenance activities: PaintMate Plus; Paint-N-Roll Plus; StainMate; and Trim-It. Although each model differs slightly both in appearance and individual characteristics, they operate essentially on the same principle. By inserting a fill tube into a can of paint or stain and subsequently attaching it to the bottom of the product’s arm and opening the fill valve, a vacuum is created which draws the liquid into a reservoir located within the arm. This is done by pulling back on a plunger at the handle, forcing in the liquid. Once the reservoir is full, the valve is closed, the liquid is under pressure, and the product is ready for use.
In the Paint-N-Roll Plus, the liquid is dispensed by pushing forward a plunger that forces it though the device’s nozzles and onto the roller. In the remaining three models, a trigger is used to dispense a controlled amount of liquid from the reservoir onto the pad or roller. In all four models it is the pad or roller that dispenses the paint or stain onto a surface.
Protestant claims classification of the paint dispersion devices under subheading, 8424.20.90, HTSUS, or in the alternative under 8424.89.70, HTSUS, which provide for mechanical appliances for projecting, dispersing or spraying liquids.
ISSUE:
What is the tariff classification under the HTSUS of the paint dispersion devices?
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the remaining GRIs.
The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. The ENs, although neither dispositive or legally binding, facilitate classification by providing a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.
The HTSUS provisions under consideration are as follows:
Mechanical appliances (whether or not hand operated) for projecting, dispersing or spraying liquids or powders; fire extinguishers, whether or not charged; spray guns and similar appliances; steam or sand blasting machines and similar jet projecting machines; parts thereof:
8424.20 Spray guns and similar appliances:
Other
* * * * * *
Other appliances:
Other:
Other
* * * * * *
Brooms, brushes (including brushes constituting parts of machines, appliances or vehicles), hand-operated mechanical floor sweepers, not motorized, mops and feather dusters; prepared knots and tufts for broom or brush making; paint pads and rollers; squeegees (other than roller squeegees):
Paint, distemper, varnish or similar brushes (other than brushes of subheading 9603.30); paint pads and rollers:
9603.40.20 Paint rollers
* * * * * *
Other
At liquidation, the entries were classified under subheading 9603.40.20, HTSUS, as paint brushes and rollers. Protestant claims classification of the entries under subheading 8424.20.90, HTSUS, or in the alternative under subheading 8424.89.70, HTSUS, both of which provide for mechanical appliances for projecting, dispersing or spraying liquids.
EN 84.24 provides in pertinent part:
This heading covers machines and appliances for projecting, dispersing or spraying steam, liquids or solid materials (e.g., sand, powders, granules, grit or metallic abrasives) in the form of a jet, a dispersion (whether or not in drips) or a spray.
…
(B) Spray Guns and Similar Appliances
Spray guns and similar hand controlled appliances are usually designed for attaching to compressed air or steam lines, and are also connected, either directly or through a conduit, with a reservoir of the material to be projected. They are fitted with triggers or other valves for controlling the flow through the nozzle, which is usually adjustable to give a jet a more or less divergent spray. They are used for spraying paint or distemper, varnishes, oils, plastics, cement, metallic powders, textile dust, etc. They may also be used for projecting a powerful jet of compressed air or steam for cleaning stonework in buildings, statuary, etc.
…
Hand controlled spray guns with self-contained electric motor, incorporating a pump and a container for the material to be sprayed (paint, varnish, etc.), are also covered by the heading.
EN 96.03 provides in pertinent part:
…
(F) Paint Pads and Rollers; Squeegees (Other Than Roller Squeegees)
Paint rollers consist of a roller covered with lambskin or other material mounted on a handle.
…
GRI 3(a) states, in pertinent part, that when by application of rule 2(b) or for any other reason, goods are prima facie classifiable under two or more headings, the heading which provides the most specific description shall be preferred to headings providing a more general description.
Protestant states that because the products at issue similarly incorporate a mechanism that projects paint or stain from a reservoir onto a pad or roller, they should be classified under heading 8424, HTSUS, which provides for “Mechanical appliances (whether or not hand operated) for projecting, dispersing or spraying liquids or powders.” In support of their position, Protestant notes that the language within EN 84.24, which specifically allows for “hand controlled” appliances incorporating a “reservoir of the material” and used for “spraying paint” is broad enough to incorporate the products at issue. Furthermore, Protestant cites to numerous Customs rulings wherein a wide range of products capable of projecting, dispersing or spraying liquids were classified under subheading 8424.20.90, HTSUS.
In NY H86230, dated December 19, 2001, Protestant notes that Customs recognized a battery-powered, motorized sprayer with a pistol grip and trigger, designed to spray fabric deodorizer, as being classified under subheading 8424.20.90, HTSUS. Several other Customs rulings, including devices used for spraying paint, and not electrically operated, have also been classified by Customs under subheading 8424.20.90, HTSUS. See also NY F80605, dated December 16, 1999 (“Air Brush Kit” gun used for application of paints, pest sprays and other liquids); NY E82222, dated May 20, 1999 (pneumatic spray gun kit used to spray paints, lacquers and other liquids); NY A88381, dated October 8, 1996 (spray guns for painting, particularly within the automotive industry); and NY 865507, dated August 15, 1991 (air spray gun for stains, lacquers and enamels).
In support of their alternative classification, 8424.89.70, HTSUS, Protestant cites to HQ 088500, dated April 4, 1991, wherein Customs determined that cosmetics pumps which did not “spray” fluid, but “projected” or “dispersed” fluid from inside their container, were classified under subheading 8424.89, HTSUS. See also HQ 956530, dated August 29, 1994 (soap and lotion dispenser).
Finally, Protestant states that subheading 8420.20, HTSUS, which provides for mechanical appliances for projecting, dispersing or spraying liquids, more accurately describes the instant products than does subheading 9603.40, HTSUS, which covers “hand-operated mechanical floor sweepers.” In supporting this contention, Protestant cites to HQ 965440, dated August 7, 2002, wherein Customs determined the “Wet Jet,” a manual floor-cleaning tool with an internal hand-operated sprayer for cleaning hard surface floors, did not meet the terms of heading 9603, HTSUS. Customs notes however, that the merchandise therein was also not classified under heading 8424, HTSUS, but under subheading 8509.80.00, HTSUS, as a floor polisher. In addition, Customs notes that heading 9603, HTSUS, and EN 96.03 do specifically address paint pads and rollers, and not just hand-operated mechanical floor sweepers.
Regarding the instant products, Customs agrees with the Protestant that the mechanism on these products is similar to those on products within the cited rulings, which were classified under heading 8424, HTSUS. However, for purposes of classification, this similarity is not determinative. In our review of Protestant’s cited rulings we note that in each instance the fluid contained in those items was dispensed directly onto the object for which it was intended, i.e. a wall, automobile or hands. The instant products, however, incorporate a mechanical device that dispenses paint or stain onto a pad or roller, but not onto the object for which the paint or stain is ultimately intended, i.e. a wall or other surface. As such, the mechanism is merely the conduit by which the paint or stain is stored and dispensed to the pad or roller, but it is the pad or roller that actually applies the fluid to a surface, thereby making them the defining components of the application process and the mechanism secondary to this function. Therefore, the products’ purpose, to apply paint or stain by means of a pad or roller, is fundamentally more important than how the fluid is applied to the roller because the mechanism is incapable of applying fluid directly to a surface. Moreover, it seems apparent that these products will be sold with other paint pads and rollers because they ultimately deliver paint to an object in the same manner as those products, regardless of how they receive their supply of paint or stain. In contrast, the Protestant cites to products that are designed to spray or otherwise disperse liquids directly onto an object.
Finally, Customs believes that the devices at issue are similar to other paint pads and rollers previously classified under heading 9603, HTSUS. In NY 870746, dated February 12, 1992, Customs classified the “SpeedyPaint System,” under subheading 9603.40.20. The system, which consisted of a hand pump, paint roller and paint brush, operated by delivering paint to the roller or brush by means of the pumping action of the user. See also NY I83307, dated May 29, 2002, NY E88564, dated October 19, 1999 and NY E87937, dated October 12, 1999.
In view of the foregoing, the PaintMate Plus and Paint-N-Roll Plus are classified under subheading 9603.40.20, HTSUS, which provides for paint rollers and the StainMate and Trim-It are classified under subheading 9603.40.40, HTSUS, which provides for paint pads.
HOLDING:
The PaintMate Plus and Paint-N-Roll Plus are classified under subheading 9603.40.2000, HTSUS, as “Brooms, brushes (including brushes constituting parts of machines, appliances or vehicles), hand-operated mechanical floor sweepers, not motorized, mops and feather dusters; prepared knots and tufts for broom or brush making; paint pads and rollers; squeegees (other than roller squeegees): Paint, distemper, varnish or similar brushes (other than brushes of subheading 9603.30); paint pads and rollers: Paint rollers.” The applicable 2003 rate of duty is 7.5 percent ad valorem.
The StainMate and Trim-It are classified under subheading 9603.40.4020, HTSUS, as ““Brooms, brushes (including brushes constituting parts of machines, appliances or vehicles), hand-operated mechanical floor sweepers, not motorized, mops and feather dusters; prepared knots and tufts for broom or brush making; paint pads and rollers; squeegees (other than roller squeegees): Paint, distemper, varnish or similar brushes (other than brushes of subheading 9603.30); paint pads and rollers: Other: Paint pads.” The applicable 2003 rate of duty is 4 percent ad valorem.
You are instructed to DENY the protest.
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 CBP 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 Rulings Division