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HQ W967374

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November 30, 2005

CLA-2 RR:CTF:TCM 967374 KBR

CATEGORY: CLASSIFICATION

TARIFF NO.: 3213.10.0000

Port Director
Bureau of Customs & Border Protection
9901 Pacific Highway
Blaine, WA  98230

RE: Protest 3004-04-100055; Window Sticker Kit

Dear Port Director:

This is our decision on protest 3004-04-100055 filed by counsel on behalf of Marnlen Management Ltd./Labelad and Sandylion Sticker Designs, against your action regarding the classification of a window sticker kit under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The goods were entered on September 30, and October 1, 2003. The entries under protest were liquidated on August 6, 2004. This protest was timely filed on September 3, 2004.

FACTS:

The product is a “Make Your Own Window Stickers” kit. The kit is used to make colorful designs that will stick to any smooth surface and are removable. The kit consists of twelve 60 ml bottles of paint in different colors, two 60 ml bottles of black outliner paint, one plastic duel-tipped paint applicator tool, one hundred preprinted designs for tracing and three clear acetate tracing sheets. The packaging box of the kit describes the bottles of colors as “Window Sticker Paint” in two locations. The box also states “If paint is applied too thin, window sticker may be difficult to remove.” The instruction page also refers to “Window Sticker Paints.” Each of the bottles of colored material is labeled as “Paint”. A “Post Summary Adjustment” dated April 2, 2004, describes the kit as containing “bottles of paint”.

The protestant claims that the window sticker paint is not “paint” but is a colored liquid plastic with the trademark name of “Permabrite”. The manufacturer would not provide any information as to the composition of “Permabrite”. Two “Declaration of Conformity” documents list the product name as “Permabrite” and the product as “Window Sticker Paints”.

You classified the window sticker kit in subheading 3213.10.0000, HTSUSA, which provides for “[a]rtists’, students’ or signboard painters’ colors, modifying tints, amusement colors and the like, in tablets, tubes, jars, bottles, pans or similar forms or packings: [c]olors in sets.” The protestant claims that the window sticker kit should be classified in subheading 9503.90.0080, HTSUSA, as “[o]ther toys; reduced-size (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof: [o]ther: [o]ther.”

The protestant submitted evidence that the same product has been imported into Canada and after protest was classified in subheading 9503.90.00, HTS by Canadian Customs. The Canadian document states “Please be advised that this decision should not be construed as a precedent. Should you wish to have a binding ruling on the classification, valuation or origin of these goods, you may apply for a National Customs Ruling, Advance Ruling for NAFTA.”

The sample of the Make Your Own Window Stickers Kit was sent to the Customs and Border Protection (“CBP”) New York Laboratory which tested the sample “paint” and reported that the bottled material was comprised of water, acrylic plastic and coloring matter.

ISSUE:

Whether the Make Your Own Window Stickers Kit contains “paints” and should be classified as colors in sets, or if the material is not “paint” and should be classified as other toys?

LAW AND ANALYSIS:

Merchandise is classifiable under the HTSUSA in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUSA is such that virtually all goods are classified by application of GRI 1, that is, 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 may then be applied.

The HTSUSA 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 similar forms or packings:

3213.10.0000 Colors in sets

9503 Other toys; reduced-size (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof:

9503.70.0000 Other toys, put up in sets or outfits, and parts and accessories thereof

9503.90 Other:

9503.90.0080 Other

In understanding the language of the HTSUSA, the Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUSA, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

As noted above, the window sticker kit consists of several individual components. The kit can not be classified pursuant to GRI 1 because the components are classifiable in different headings. Since no single heading describes all of the products in the window sticker kit, the components must either be considered as a set under GRI 3(b) or classified individually. GRI 3(b) provides that when goods are prima facie classifiable under two or more headings and are put up in sets for retail sale, they shall be classified as if they consisted of the material or component which gives them their essential character. The components constitute “goods put up in sets for retail sale,” if they satisfy the following criteria set forth in EN (X) to GRI 3(b). Goods are classified as sets put up for retail sale if they:

(a) consist of at least two different articles which are, prima facie, classifiable in different headings. Therefore, for example, six fondue forks cannot be regarded as a set within the meaning of this Rule;

(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 (e.g., in boxes or cases or on boards).

The window sticker kit meets the GRI 3(b) and attendant EN (X) definition of “goods put up in sets for retail sale.” First, the window sticker kit consists of at least two different articles which are, prima facie, classifiable in two different headings: the paint, the applicator tool, the tracing designs, and the acetate sheets. Secondly, the items are put up together to carry out the specific activity of making window stickers and the items will be used together or in conjunction with one another. Lastly, the articles are put up in a manner suitable for sale directly to users without repacking. We thus believe that the window sticker kit qualifies as a set of GRI 3(b); and we must now determine which item imparts the essential character to the set.

The factor which determines essential character may 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. GRI 3(b) EN (VIII). In this instance, the paint clearly provides the essential character of the window sticker kit in comparison to the other components. The paint provides the most bulk, quantity, weight, and plays the most important role in the creation of the window stickers.

Next, we must determine the proper classification of the window sticker kit’s “paint” under the HTSUSA. The EN for heading 3213 states that:

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 for heading 9503 specifically excludes from this heading “(a) Paints put up for children’s use (heading 32.13).” Therefore, if the instant article is comprised of paints, the EN would indicate that the paint kit should not be classified as a toy of heading 9503.

CBP has found that paint sets intended for use with children are classified in heading 3213, HTSUSA. See HQ 561326 (April 26, 1999); NY D82714 (October 1, 1998); and NY G87177 (February 29, 2001). A children’s paint kit remains classified in heading 3213 when it contains patterns or stencils. See NY K89008 (September 21, 2004). CBP specifically found that a paint kit should be classified in heading 3213 and not as a toy in heading 9503, HTSUSA. See HQ 957131 (February 27, 1995). See i.e., NY K84955 (April 9, 2004).

The question we must address is whether the instant article consists of paint or if the contents of the bottles which the protestant calls “Permabrite” requires some other classification.

Initially, we note that repeatedly on the box, in the instructions and on the bottles themselves the material is described as “paint”. The documents submitted with the importation and the Declaration of Conformity call the material “paint”.

Further, we submitted the sample paint kit to the CBP New York Laboratory to analyze the material in the bottles. In New York Laboratory Report NY20051614, dated October 31, 2005, the sample tested was determined to contain water, acrylic plastic and coloring matter. In this regard, methods of weighing, measuring and testing merchandise used by CBP officers and the results obtained are presumed to be correct. However, this presumption may be rebutted by showing that such methods or results are erroneous. See Consolidated Cork et. al. v. United States, 54 Cust. Ct. 83, C.D. 2512 (1965).

The components of the material in the window sticker kit bottles is consistent with the components of paint. According to The Family Handyman, Choosing High-Quality Paint by Spike Carlsen (April 2001) (www.rd.com):

Base paint ingredients can be lumped into four categories:

Pigments are finely ground particles that give paint its opacity and ability to “hide” the surface it’s applied to. (Colorants are the tints added at the hardware store of home center to produce the exact color you want.)

Resin (or binders) are the ingredients that hold the pigments and colorants in place after the paint dries.

Solvents (also called carriers) are the liquids that transport the above ingredients from the brush or roller onto the wall. In latex paint the main solvent is water; in oil-based paint it’s primarily mineral spirits. These evaporate as the paint dries.

Additives are the chemicals that effect everything from mildew resistance to workability.

Resins – sometimes called binders – are the plastic-like ingredients in paint that bind together to create a film, encapsulating the pigments. The best latex resins are made of acrylic.

According to The Rohm and Haas Paint Quality Institute (www.paintquality.com):

The binder in a latex paint is a solid plastic-like material dispersed as microscopic particles in water.

Thus, the paint consists of dispersed pigment and binder, along with some additives and liquid, mainly water.

Types of latex binder: There are different broad chemical types of polymer used as latex paint binders. The two types used most commonly in North America are: 100% acrylic and vinyl acrylic (also called PVA for polyvinyl acetate).

The material in the window sticker kit bottles contains water as the solvent, acrylic plastic as the binder and the coloring matter (pigment). Therefore, the material in the bottles of the window sticker kit qualifies under the above descriptions as paint.

Therefore, because the packaging of the article repeatedly calls the material paint, the protestant describes the article as paint in the importation documents, the Declaration of Conformity calls the material paint, and an analysis by the CBP Laboratory finds the components of the bottles in the window sticker kit to be consistent with the components of latex paint, we find that the material in the bottles of the window sticker kit is paint.

The protestant also submitted information that Canadian Customs issued a refund upon determining the window sticker kit should be classified in heading 9503. First, we note that the Canadian refund document was not a binding ruling and specifically states that the decision has no precedential value. Second, there was no explanation for how they came to that classification. As stated in T.D. 89-80, classification decisions of other administrations, while instructive, are not binding on the United States, as these rulings may have been subject to political realities or domestic regulations which are different from our own. See HQ 966783 (July 9, 2004). Therefore, we do not find the Canadian refund decision persuasive.

Therefore, because we find the material to be paint, the instant Make Your Own Window Stickers Kit is classified in heading 3213. It is provided for under subheading 3213.10.0000, HTSUSA, as “Artists’, students’ or signboard painters’ colors, modifying tints, amusement colors and the like, in tablets, tubes, jars, bottles, pans or similar forms or packings: Colors in sets.”

HOLDING:

In accordance with the above discussion, the Make Your Own Window Stickers Kit is classified in heading 3213, specifically in subheading 3213.10.0000, HTSUSA, as “Artists’, students’ or signboard painters’ colors, modifying tints, amusement colors and the like, in tablets, tubes, jars, bottles, pans or similar forms or packings: Colors in sets.” The 2003 column one, general rate of duty rate is 6.5% ad valorum. 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 the World Wide Web at www.usitc.gov/tata/hts/.

The protest should be DENIED. In accordance with the Protest/Petition Processing Handbook (CIS HB, June 2002, pp. 18 and 21), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing 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 and Trade Facilitation Division

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See also:

• Tariff No.: 3213.10.00 - Artists', students' or signboard painters' colors, in tablets, tubes, jars, bottles, pans or in similar packings, in sets
• Tariff No.: 9503.70.00 - Toys neosi, put up in sets or outfits and parts and accessories thereof
• Tariff No.: 9503.90.00 - Toys and reduced scale models neosi and parts and accessories thereof