CLA-2 OT:RR:CTF:TCM H181677 EG
Jennifer Crutcher
Art 101 USA, Ltd.
5827 Del Roy Drive
Dallas, TX 75230
RE: Classification of Painting with Oil & Acrylics 101 in Wood Case
Dear Ms. Crutcher:
This is in response to your request of June 8, 2011, for a binding ruling on the tariff classification of the Painting with Oil & Acrylics 101 kit under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The Painting with Oil & Acrylics 101 kit (the kit) includes six oil paint tubes, six acrylic paint tubes, four paint brushes, one small pad with six canvas sheets, one oil painting learning booklet, one acrylic painting learning booklet and one paperboard color wheel. The six oil paint tubes and two of the paint brushes rest inside of a fitted, clear plastic tray. The six acrylic paint tubes and two of the paint brushes also sit inside of a fitted plastic tray. The rest of the kit sits loosely inside of the retail packaging. The kit and its contents are manufactured in China and Vietnam.
The kit’s retail packaging is a wooden box. The box’s lid is comprised of medium density fiberboard. The wooden box measures approximately 10 inches x 7.5 inches x 2 inches. It does not have any handles. The two fitted plastic trays which hold the paints are stacked on top of each other inside the box. These trays must be removed from the box in order to access the paints and the paint brushes.
The information printed on the packaging states that art can be displayed on the wooden box, but the box does not include any means by which to mount and display artwork. The box’s lid has a raised frame around the edges. However, this frame is completely attached to the lid and does not have a gap where art can slide between the frame and the lid. Moreover, the canvas sheets included in the kit are much smaller than the frame. Even if the frame had a space to hold art, the enclosed canvas sheets would not fit into the frame.
ISSUE:
What is the tariff classification of the kit?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRIs”). 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 2 through 6 may then be applied in order.
The HTSUS provisions under consideration are as follows:
3213 Artists', students' or signboard painters' colors, modifying tints, amusement colors and the like, in tablets, tubes, jars, bottles, pans or in similar forms or packings:
3213.10.00 Colors in sets …
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4420 Wood marquetry and inlaid wood; caskets and cases for jewelry or cutlery and similar articles, of wood; statuettes and other ornaments, of wood; wooden articles of furniture not falling within chapter 94:
4420.90 Other:
Jewelry boxes, silverware chests, cigar and cigarette boxes, microscope cases, tool or utensil cases and similar boxes, cases and chests, all the foregoing of wood:
4420.90.45 Other …
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GRI 5 states as follows:
In addition to the foregoing provisions, the following rules shall apply in respect of the goods referred to therein:
(a) Camera cases, musical instrument cases, gun cases, drawing instrument cases, necklace cases and similar containers, specially shaped or fitted to contain a specific article or set of articles, suitable for long-term use and entered with the articles for which they are intended, shall be classified with such articles when of a kind normally sold therewith. This rule does not, however, apply to containers which give the whole its essential character;
(b) Subject to the provisions of rule 5(a) above, packing materials and packing containers entered with the goods therein shall be classified with the goods if they are of a kind normally used for packing such goods. However, this provision is not binding when such packing materials or packing containers are clearly suitable for repetitive use.
* * *
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While not legally binding or 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. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
EN 32.13 provides, in pertinent part, for:
This heading covers prepared colours and paints of a kind used by artists, students or signboard painters, modifying tints, amusement colours and the like (water colours, gouache colours, oil paints, etc.), provided they are in the form of tablets or put up in tubes, small jars or bottles, pans or in similar forms or packings.
The heading also includes those sold in sets or outfits, with or without brushes, palettes, palette knives, stumps, pans, etc.
The heading does not include printing inks (or colours), Indian ink, whether liquid or solid, or other products classified under heading 32.15, nor crayons, pastels or similar articles (heading 96.09).
* * *
Heading 3213, HTSUS, provides for artists’ colors in tubes. The instant kit contains both acrylic and oil paints in tubes. According to EN 32.13, tubes of paint are classifiable in heading 3213, HTSUS, even if they are packaged together with certain complementary articles such as brushes and palettes. The instant kit is packaged together with paint brushes, instruction booklets, a small canvas pad and a paperboard color wheel.
In Headquarters Ruling Letter (HQ) 957131, dated February 27, 1995, U.S. Customs and Border Protection (CBP) classified a painting kit and a sponge art painting kit under heading 3213, HTSUS. Both kits contained paints as well as articles such as paper, brushes and sponges. CBP determined that these painting kits were classifiable under heading 3213, HTSUS, because the additional articles supported the application of paint. As such, the kits remained within the scope of heading 3213, HTSUS.
Similarly, the instant kit contains complementary articles. The booklets provide painting instruction, the color wheel aids paint blending and the consumer will paint on the canvas sheets. All of these articles support painting. Under GRI 1, the painting kit is classified as artists’ colors in sets under heading 3213, HTSUS.
In order to classify the wooden box, we must look to GRI 5. GRI 5 provides for the classification of certain retail packaging. Under GRI 5(a), we may classify a case under the same heading as its contents, provided that the case is “specially shaped or fitted to contain a specific article or set of articles, suitable for long-term use and entered with the articles for which they are intended … [and] when of a kind normally sold therewith.” The subject box is not specially shaped or fitted for the articles included in the set of colors. The box is a simple rectangular box. Two fitted plastic trays are stacked on top of each other within the box. The rest of the articles sit loosely inside the box. After the paints are used up, the consumer could use the box to store other items. Therefore, the wooden box cannot be classified with the kit under GRI 5(a).
GRI 5(b) states that “subject to the provisions of rule 5(a) above, packing materials and packing containers entered with the goods therein shall be classified with the goods if they are of a kind normally used for packing such goods. However, this provision is not binding when such packing materials or packing containers are clearly suitable for repetitive use.” The subject wooden box is clearly suitable for reuse. Moreover, paints are not typically sold in such boxes. They are typically sold in tubes, jars, pans and other packages. As such, we cannot classify the wooden box together with the paints under GRI 5(b).
Heading 4420, HTSUS, provides for certain cases of wood. In NY L85545, dated June 20, 2005, CBP classified an art set which consisted of twelve artist brushes packaged for retail sale in a wooden box. Similar to the instant box, the box in NY L85545 was rectangular and reusable. CBP classified the wood box under heading 4420, HTSUS. See also NY N018492, November 13, 2007 (CBP classified a reusable wooden box which held seven pens in heading 4420, HTSUS). As such, we find that the instant wooden box is also classified in heading 4420, HTSUS, as a case of wood.
Please note that the kit’s canvas sheets may fall within the scope of an antidumping order concerning certain artist canvases from the People's Republic of China. See 71 FR 31154, June 1, 2006. We note that the International Trade Administration is not necessarily bound by a country of origin or classification determination issued by CBP, with regard to the scope of antidumping orders or countervailing duties. Written decisions regarding the scope of AD/CVD orders are issued by the Import Administration in the Department of Commerce and are separate from tariff classification and origin rulings issued by Customs and Border Protection. You can contact them at http://www.trade.gov/ia/ (click on “Contact Us”). For your information, you can view a list of current AD/CVD cases at the United States International Trade Commission website at http://www.usitc.gov (click on “Antidumping and countervailing duty investigations”), and you can search AD/CVD deposit and liquidation messages using ACE, the system of record for AD/CVD messages, or the AD/CVD Search tool at http://addcvd.cbp.gov/index.asp?ac=home.
HOLDING:
By application of GRI 1, the painting kit is classified as artists’ colors under heading 3213, HTSUS. It is specifically provided for under subheading 3213.10.00, HTSUS, as “Artists', students' or signboard painters' colors, modifying tints, amusement colors and the like, in tablets, tubes, jars, bottles, pans or in similar forms or packings: colors in sets…” The 2012 column one, general rate of duty is 6.5% on the entire set.
By application of GRI 1, the wooden box is classified as a case of wood under heading 4420, HTSUS. It is specifically provided for under subheading 4420.90.45, HTSUS, as “[C]ases for jewelry or cutlery and similar articles, of wood: other: [c]ases and chests, all the foregoing of wood: other: not lined with textile fabrics …” The 2012 column one, general rate of duty is 4.3% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
A copy of this ruling letter should be attached to the entry documents filed
at the time the goods are entered. If the documents have been filed without a copy, this
ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Ieva K. O’Rourke, Chief
Tariff Classification and Marking Branch