CLA-2 RR:CR:TE 962355 gah
Fred C. Higdon
Director, Regulatory Compliance
Fritz Companies, Inc.
706 Mission Street, Suite 1000
San Francisco, CA 94103
RE: Reconsideration of NY D81180; paints and silk tie, or silk scarf, or note cards or window decorations, put up for retail sale as a craft project
Dear Mr. Higdon:
This is in reply to your request for reconsideration of NY ruling D81180, dated September 25, 1998, on craft projects containing paints put up in small bottles for use on a silk tie and pocket square, a silk scarf, silk window decorations, or silk mounted on paper note cards. A sample set was provided. We have reviewed NY D81180 and have determined that it is in error. 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, a notice was published on December 1, 1999, in the Customs Bulletin, Volume 33, Number 48, proposing to revoke NY D 81180. No comments were received in response to this notice.
Therefore, this ruling revokes NY D81180 and sets forth the correct classification for the drawing set.
FACTS:
The items at issue are entitled Color Me Silk Passepartout (all occasion note cards), Color Me Silk Scarf, Color Me Silk Tie and Color Me Silk Window Decorations. The sets include: paints for silk; an artist’s paint brush, instruction booklets; pins; a plastic palette; silk test fabric (about five inches square), folded cardboard frames; and depending on the set, a tie and handkerchief, a scarf, three note cards with envelopes or three window decorations. Each article is made from white woven silk fabric printed with gold colored guidelines of the pattern to be painted. All articles are packaged for retail sale in cardboard box frames indicating how the project is completed.
In NY D81180, Customs held the articles of each set were separately classified, following HQ 085267, dated May 9, 1990. Our reasoning was that the separate articles, although useable together, could also be used for separate activities or needs, and therefore did not meet criteria (b) of the GRI 3 (b) Explanatory Note of put up to meet a particular need or specific activity.
ISSUE:
Are the craft projects considered sets put up for retail sale?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff Schedule of the United States (HTSUS) is in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI.
Heading 3213, Harmonized Tariff Schedule of the United States (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 silk paint in jars is classified therein. Heading 4817, HTSUS, provides for, inter alia, envelopes, letter cards, plain postcards and correspondence cards, of paper or paperboard. The note cards and envelopes are classified therein. Heading 6213, HTSUS, covers handkerchiefs. The pocket square is classified therein. Heading 6214, HTSUS, covers, inter alia, scarves. The scarf is classified therein. Heading 6304 covers other furnishing articles, excluding those of heading 9404. The window decorations are classified therein.
Heading 4823, HTSUS, provides for, inter alia, other articles of paper pulp, paper, paperboard, cellulose wadding and webs of cellulose fibers. The folded cardboard frames are classified therein. Heading 4901, HTSUS, covers printed books, brochures, leaflets, and similar printed matter. The instruction booklet is classified therein. Heading 5007, HTSUS, covers woven fabrics of silk or of silk waste. The silk fabric test swatch with chain stitched raw edges is classified therein. Heading 7326, HTSUS, covers other articles of iron or steel. The pushpins are classified therein. Heading 9603, HTSUS, covers, inter alia, brushes. The paint brush is classified therein. The plastic palette and cardboard box frames are considered GRI 5(b) packing materials.
You argue that the craft projects form sets put up for retail sale, and that the reasoning in HQ 085267, dated May 9, 1999, is contrary to the notion that an art or craft purpose is a specific activity. GRI 3(a) indicates that when goods are classifiable in more than one heading, headings which refer to part only of the items put up for retail sale, the headings are to be regarded as equally specific.
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, 35128 (Aug. 23, 1989).
The EN to GRI 3(b) states that to meet the criteria of a set put up together for retail sale, articles must:
(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 (e.g., in boxes or cases or on boards).
Applying the above GRI 3(b) EN criteria, the instant goods are several different goods classifiable in different headings. Criteria (a). The goods are put up together to carry out the specific activity of painting a craft project. Criteria (b). The reasoning as to sets criteria (b) set forth in NY D81180 and HQ 085267 is specifically revoked. A set may be put up together to meet a particular need or carry out a specific activity, such as painting a decorated article of clothing, and yet be capable of disassembly into articles useful for other purposes. The examples of sets described in EN (X)(1-3) to GRI 3(b) are also illustrative of this point. The focus in criteria (b) is whether they work together to meet a need or carry out an activity, not whether that is all they are capable of doing.
They are put up in a manner suitable for sale directly to users without repacking in cardboard box frames. Under the instant facts, the craft sets meet criteria (a-c), of the GRI 3(b) EN, and therefore form sets put up for retail sale. For your information, you may wish to read Classification of Sets under the HTS, an informed compliance publication of the U.S. Customs Service, dated September 1999, available at www.customs.gov.
To be classified at GRI 3(b), the set must be classifiable as if the set consisted of the one article which gives the whole its essential character, insofar as this criterion is applicable. The Explanatory Notes indicate that the characteristic which gives the set its essential character 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 submitted a value breakdown of all the articles in each of the four sets, showing that the paints are the article of greatest value in each set, by a slim margin. You argue that the paints provide the essential character to the set. Your reasoning is that painting is the essence of the activity, not the creation of the finished article. Indeed, we have ruled that amusement colors for children are classified in subheading 3213.10, HTSUS, when put up in sets with certain articles to be painted. See, e.g., NY B83100, dated April 14, 1997.
However, the nature of the tie or scarf, for example, and the role of it in relation to the use of the goods, both favor a finding of an essential character in the finished, painted article. The articles in question are well constructed silk articles with gold outlines of the motif to be painted, and are painted to demonstrate serious artistic talent by an adult, often as a gift to another. The paints are used up, and the finished tie and handkerchief, scarf, note card or window decoration remain, to be used over and over again. Thus, we find that the tie, the scarf, the note card and the window decoration provide the essential character to the sets. The sets are classified accordingly.
In the case of the Color Me Silk Tie set, the set contains both a silk tie and a small silk handkerchief or pocket square. We believe the tie provides the essential character as between the two competing headings, 6213 and 6214, HTSUS, as it provides more of the bulk, weight and value of the set.
HOLDING:
The Color Me Silk Passepartout set is classified in subheading 4817.20.4000, HTSUS, which provides for letter cards, plain postcards and correspondence cards, other, dutiable at 1.6 percent ad valorem. The Color Me Silk Scarf set is classified in subheading 6214.10.1000, HTSUS, which provides for shawls, scarves, mufflers, mantillas, veils and the like, of silk or silk waste, containing 70 percent or more by weight of silk or silk waste, dutiable at 1.2 percent ad valorem. The Color Me Silk Tie set is classified in subheading 6215.10.0025, HTSUS, which provides for ties, bow ties and cravats, of silk or silk waste, containing 50 percent or more by weight (including any linings and interlinings) of textile materials other than silk or silk waste, dutiable at 7.6 percent ad valorem and carrying textile category 659. The Color Me Silk Window Decorations set is classified in subheading 6304.99.6030, HTSUS, which provides for other furnishing articles, other, not knitted or crocheted, of other textile materials, other, other, other, containing 85 percent or more by weight of silk or silk waste, dutiable at 4.8 percent ad valorem. NY D81180 is hereby revoked.
The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent negotiations and changes, we suggest that your client check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service, which is updated weekly and is available at the local Customs office.
Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact the local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements. See also, HQ 961956, dated October 8, 1999.
In accordance with 19 U.S.C. 1625 (c)(1), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
John Durant, Director
Commercial Rulings Division