OT:RR:CTF:TCM H194138 PTM
TARIFF NO: 3213.10.00
Trans-Border Customs Services, Inc.
One Trans-Border Drive
P.O. Box 800
Champlain, NY 12919
Dear Sir or Madam:
On February 27, 1995, we issued Headquarters Ruling HQ 957131 in response to your request for internal advice regarding the tariff classification of four separate articles, including a “sponge art” set. In HQ 957131, we determined that the proper tariff classification of the sets under the Harmonized Tariff Schedule of the United States (“HTSUS”) under heading 3213 as a GRI 1 set. We have reviewed HQ 957131 and find it to be in error with respect to the classification analysis pertaining to the sponge art set. For the reasons set forth below, we hereby modify HQ 957131.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625 (c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), a notice was published in the Customs Bulletin, Volume 49, No. 31, on August 5, 2015, proposing to modify N009306, and any treatment accorded to substantially identical transactions. No comments were received in response to this notice.
FACTS:
In HQ 957131, we classified several art sets consisting of various articles, including a sponge art set. We described the sponge art set as follows:
The "Sponge Art" article, identified by item no. 05130,
consists of six specially shaped sponges (Malaysia), six jumbo
glitter watercolor paints (Hong Kong), six sheets of coated
paper, and one artist brush (Hong Kong).
Thus, the sponge art set consisted of an array of components of differing origin that were classifiable individually in various tariff headings.
ISSUE:
What is the proper tariff classification of the sponge art set?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI’s”). 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. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs 1 through 5.
The merchandise at issue consists of a set of glitter watercolor paints, shaped sponges, a brush, and coated paper. The HTSUS provision at issue 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 Colors in sets
* * *
4811 Paper, paperboard, cellulose wadding and webs of cellulose fibers, coated, impregnated, covered, surface-colored, surface-decorated or printed, in rolls or rectangular (including square) sheets, of any size, other than goods of the kind described in heading 4803, 4809 or 4810
4811.59 Other: …
Heading 3213 covers various painters’ colors in different forms of packaging, and includes colors in sets. Consequently, the paint set in the sponge art set is prima facie classifiable under heading 3213 HTSUS. Heading 4811 covers coated paper, and therefore the coated paper in the sponge art set is prima facie classifiable under heading 4811 HTSUS.
In HQ 957131, the legacy Customs Service stated, with respect to the sponge art set and a separate “paint art set”:
We note, however, that the "paint art" and "sponge art" articles essentially consist only of paints and accessories related to the paint's application. In determining whether any one heading would accommodate the components of these two sets, we look to heading 3213, HTSUS.
Heading 3213, HTSUS, provides for "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." The ENs to heading 3213 indicate that, among other items, the heading includes colors and paints (including watercolors) that are sold in sets or outfits, with or without brushes, palettes, palette knives, stumps, pans, etc. It is apparent that the non-paint components of the "paint art" and "sponge art" articles are put up with the paints and colors to enhance the sets' attractiveness to children. As heading 3213 is sufficiently broad to cover these components, it specifically describes the "paint art" and "sponge art" sets. The proper subheading for these colors in sets is 3213.10.0000, HTSUSA.
In HQ H957131, legacy Customs classified the sponge art set under heading 3213.10.1000 by application of GRI 1 set because “heading 3213 is sufficiently broad to cover these components.” We disagree that heading 3213 covers all of the component parts of the sponge art set, specifically the coated paper included in the set. We note that the plain language of the heading covers colors, tints, and colors. The language of the heading does not include any reference to sheets of paper or other medium onto which the user will paint.
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, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989). The EN for heading 3213 provides:
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 EN clarifies that the heading covers colors and paints, but the heading also includes those sold in sets with brushes, palettes, palette knives, stumps and pans. Each of the items enumerated are used to either prepare or apply the paint in the set. Consequently, the sponges and brush are encompassed by heading 3213. However, there is no indication that heading 3213 covers the medium onto which the painter will apply the paint, i.e., canvas, paper sheets or signboards. In this case, the coated paper in the sponge art set would not be covered under heading 3213. Based on the plain language of heading 3213 HTSUS and the commentary of explanatory note 32.13, we find that the sponge art set may not be classified under heading 3213 HTSUS as a GRI 1 set.
Because the components of the sponge art set are prima facie classifiable under separate headings, it must be classified pursuant to GRI 3, which states:
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.
Because the sponge art set consists of various components, the set is a composite good classifiable under GRI 3(b). The EN (VIII) to GRI 3(b) states the following:
The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.
The application of the “essential character test” requires a fact-intensive analysis. See Home Depot U.S.A., Inc. v. United States, 491 F.3d 1334, 1337 (Fed. Cir. 2007). But in addition to the those listed in the EN (VIII) to GRI 3(b), other factors should be considered, including the article’s name, primary function, and the “attribute which strongly marks or serves to distinguish what it is. Its essential character is that which is indispensable to the structure, core or condition of the article, i.e. what it is.” A.N. Deringer, Inc. v. United States, 66 Cust. Ct. 378, 383 (1971).
In the instant case, the sponge and paint brush are used to apply the six types of glitter paint. The paint is applied to the coated sheets of paper. Consequently, the primary function of the sponges, brush, and paper is to assist with the application of the watercolor glitter paint. Therefore, we find that the set of six watercolor glitter paint provides the essential character of the set.
Subheading 3213.10 HTSUS provides for paint and colors in sets. Furthermore, prior CBP rulings have classified paint sets under heading 3213 HTSUS. For example, in HQ 561326 (April 26, 1999), we found a childrens’ paint set, consisting of 6 plastic bottles of washable paint was properly classified under subheading 3213.10.00, HTSUS. In N004275 (Jan. 9, 2007), we found an “Easter Fun Paint Set” consisting of 4 water color paint, 1 paint brush and two plaster ornaments in a blister package put up for retail sale to be classified under subheading 3213.10.00 HTSUS. See also NY K89008 (Sept. 21, 2004), (where CBP classified a pumpkin paint set under subheading 3213.10.00 HTSUS by application of GRI 3(b)). Based on the foregoing, we find that the paint set in the sponge art kit is properly classified under subheading 3213.10.00 HTSUS.
HOLDING:
By application of GRI 3(b), the sponge art kit is properly classified in heading 3213 HTSUS, specifically subheading 3213.10.0000, which provides for “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 general, column one rate of duty is 6.5 percent ad valorem.
Duty rates are provided for 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/.
EFFECT ON OTHER RULINGS:
HQ 957131 is hereby MODIFIED
In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division