CLA-2-96:OT:RR:NC:N4:422
Ms. Alisha Kennedy
Art 101 USA, Ltd.
5827 Del Roy Dr.
Dallas, TX 75230
RE: The tariff classification of an art set from China, an art set from Vietnam, crayons, oil pastels, acrylic paints, paint brushes, a paper art pad, a canvas art pad, an eraser, a sharpener, a plastic paint palette and learning guides from China and various pencils from Vietnam.
Dear Ms. Kennedy:
In your letter dated March 17, 2011, you requested a tariff classification ruling.
The submitted samples are identified as follows:
Item 30175 – Trifold Art Set. This item consists of 48 crayons, 48 oil pastels, 24 color pencils, 19 watercolors, 12 markers, 10 sheets of paper, 4 large clips, 3 paper clips, 1 learning guide, 1 sketch pencil, 1 paint brush, 1 ruler, 1 eraser, 1 color wheel, 1 palette, 1 pencil sharpener, 1 sponge and a pop-up double sided easel that is made of paperboard covered with plastic sheeting and is built into a tri-fold organizer case. Although this item is made in China, you have stated that the pencils are made in Vietnam.
Item 31075 – Metal Case Art Set. This item consists of 18 color pencils, 12 oil pastels, 2 charcoal pencils, 2 blending tortillions, 2 erasers, 1 pencil sharpener, 1 color chart, 1 wood manikin, a 24-sheet art pad with paper sheets and a 12-page learning guide, all contained within a metal organizer case. This item is made in Vietnam.
Item 62010 – All Media Art Set. This item includes 12 acrylic paint tubes, 12 jumbo oil pastels, 12 color pencils, 12 sketch pencils, 5 paint brushes, 1 eraser, 1 plastic palette, 1 pencil sharpener, a 12-sheet art pad with paper sheets, a 10-sheet art pad with cotton canvas sheets and 2 learning guides. Although this item is made in China, you have stated that the pencils are made in Vietnam.
The Explanatory Notes to the Harmonized Commodity Description and Coding System (ENs), although not legally binding, are the official interpretation of the tariff at the international level. In applying the provisions of the Harmonized Tariff Schedule of the United States (HTSUS), Customs will look to the ENs for guidance. In determining whether two or more articles imported together constitute a "set put up for retail sale" and are, therefore, classifiable under a single tariff provision, EN X for General Rule of Interpretation (GRI) 3(b) provides the criteria as to whether the goods: (a) consist of at least two different articles which are, prima facie, classifiable in different headings; (b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and (c) are put up in a manner suitable for sale directly to users without repacking.
Item 30175 and Item 31075 are each considered to be "goods put up in sets for retail sale" within the meaning of GRI 3 and each set is classifiable under a single tariff provision. EN VII to GRI 3(b), states that in "all these cases the goods are to be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable." However, the term "essential character" is not defined within the HTSUS, GRI’s or ENs. EN VIII to GRI 3(b) gives guidance, stating that "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."
You have suggested that Item 30175 is correctly classified in subheading 9609.90.8000 and we agree with your suggestion. Included in Item 30175 are 48 crayons and 48 oil pastels. EN 96.09 (5) references crayons and pastels as a single category of merchandise that is included in heading 9609. Therefore, there are a total of 96 crayons and pastels that are included in Item 30175. It is therefore the opinion of this office that the 48 crayons and 48 oil pastels provide Item 30175 with the essential character, within the meaning of GRI 3(b).
You have also suggested that Item 31075 is correctly classified in subheading 9609.10.0000 and we also agree with this suggestion. Included in Item 31075 are 18 color pencils and 2 charcoal pencils, for a total of 20 pencils. It is therefore the opinion of this office that the 18 color pencils and 2 charcoal pencils provide Item 31075 with the essential character, within the meaning of GRI 3(b).
However, although you suggested that Item 62010 is correctly classified in subheading 9609.90.8000, the subject articles of this item meet criteria (a) and (c) of EN X but do not meet criteria (b) of that EN. The various articles of this item meet different needs and are used to carry out different activities. Consequently, all articles of this item must be classified separately.
Unlike Item 30175 and Item 31075, the various articles of Item 62010 are not contained in an organizer case of any kind. The pencils, paints and pastels are contained in three different respective boxes within the retail package.
The paper sheet “Art Pad” of Item 62010 consists of twelve unlined, white paper sheets and the “Canvas Art Pad” of this item consists of ten prepared artists’ cotton canvases. In each of the two pads, the sheets measure approximately 8½” by 11”, are bound between paper covers and are held together at the top of the page with adhesive for easy removal from the pad. The paper sheet “Art Pad” is designed for use as a sketch pad to experiment with various art techniques using color markers, pencils, pastels and ink. The “Canvas Art Pad” is designed for use with the paints and paint brushes. Therefore, the two pads are designed for two different activities.
Item 62010 includes 2 learning guides that are each designed as single, quarter fold sheets which are lithographically printed on both sides and measure approximately 16” by 7”, unfolded. One guide is entitled “Drawing & Sketching” and the other is entitled “Acrylic Painting”. The two learning guides provide course objectives with diagrams related to two different activities.
The applicable subheading for the 12 acrylic paints of Item 62010 will be 3213.10.0000, Harmonized Tariff Schedule of the United States (HTSUS), 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 rate of duty will be 6.5 percent on the entire set.
The applicable subheading for the eraser of Item 62010, if it is made of plastic, will be 3926.10.0000, HTSUS, which provides for other articles of plastics and articles of other materials of headings 3901 to 3924: office or school supplies. The rate of duty will be 5.3 percent ad valorem.
The applicable subheading for the plastic palette of Item 62010 will be 3926.90.9980, HTSUS, which provides for other articles of plastics and articles of other materials of headings 3901 to 3924:other: other…other. The rate of duty will be 5.3 percent ad valorem.
The applicable subheading for the eraser of Item 62010, if it is made of rubber, will be 4016.92.0000, HTSUS, which provides for other articles of vulcanized rubber other than hard rubber: other: erasers. The rate of duty will be 4.2 percent ad valorem.
The applicable subheading for the paper sheet Art Pad of Item 62010 will be 4820.10.2020 (HTSUS), which provides for memorandum pads, letter pads and similar articles. The rate of duty will be free.
The applicable subheading for the 2 lithographically printed learning guides of Item 62010 will be 4911.99.6000 (HTSUS), which provides for other printed matter, including printed pictures and photographs: other: other: other: printed on paper in whole or in part by a lithographic process. The rate of duty will be free.
The applicable subheading for the Canvas Art Pad of Item 62010 will be 5901.90.4000, HTSUS, which provides for…prepared painting canvas…other: other. The rate of duty will be 4.1 percent ad valorem.
The applicable subheading for the pencil sharpener of Item 62010 will be 8214.10.0000, HTSUS, which provides for paper knives, letter openers, erasing knives, pencil sharpeners (nonmechanical) and blades and other parts thereof. The rate of duty will be 0.3 cents each plus 4.2 percent ad valorem.
The applicable subheading for the 5 paint brushes of Item 62010, if valued not over 5 cents each, will be 9603.30.2000, HTSUS, which provides for artists’ brushes, writing brushes and similar brushes for the application of cosmetics: valued not over 5 cents each. The rate of duty will be 2.6 percent ad valorem. The applicable subheading for the 5 paint brushes of Item 62010, if valued over 5 cents but not over 10 cents each, will be 9603.30.4000, HTSUS, which provides for artists’ brushes, writing brushes and similar brushes for the application of cosmetics: valued over 5 cents but not over 10 cents each. The rate of duty will be free. The applicable subheading for the 5 paint brushes of Item 62010, if valued over 10 cents each, will be 9603.30.6000, HTSUS, which provides for artists’ brushes, writing brushes and similar brushes for the application of cosmetics: valued over 10 cents each. The rate of duty will be free.
The applicable subheading for the 12 color pencils of Item 62010, the 12 sketch pencils of Item 62010 and the entire set of Item 31075 will be 9609.10.0000, HTSUS, which provides for pencils and crayons, with leads encased in a rigid sheath. The rate of duty will be 14 cents per gross plus 4.3 percent ad valorem.
The applicable subheading for the 12 jumbo oil pastels of Item 62010 and the entire set of Item 30175 will be 9609.90.8000, HTSUS, which provides for…pastels…: other: other. The rate of duty will be free.
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/.
The prepared artist’s canvases may be subject to antidumping duties 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 the AD/CVD Search tool at http://www.cbp.gov (click on "Import" and "AD/CVD").
You also submitted a sample that is identified as Item 53215 – Deluxe Wood Art Set. This item consists of 90 crayons, 32 fine line markers, 30 color pencils, 14 watercolor paint tubes, 20 watercolor cakes, 12 oil pastels, 6 paint brushes, 4 sketch pencils, 1 pencil sharpener, 1 eraser, 1 sponge, 1 palette, 1 sanding block and 1 water bottle, all contained within a wood organizer case. Your inquiry does not provide enough information for us to give a classification ruling on Item 53215. Your request for a classification ruling should include a value breakdown of all components, including the wood case. When this information is available, you may wish to consider resubmission of your request. If you decide to resubmit your request, please include the sample and description, along with the additional information requested here.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Gary Kalus at (646) 733-3055.
Sincerely,
Robert B. Swierupski
Director
National Commodity Specialist Division