CLA–2 OT:RR:CTF:TCM H050436 AMM
Mr. John M. Peterson
Neville Peterson LLP
17 State Street 19th Floor
New York, NY 10004
RE: Modification of New York Ruling Letter N042191; Revocation of New York Ruling Letter 870922; Classification of Battery-Operated Paint Rollers
Dear Mr. Peterson,
This is in reference to the request for reconsideration of New York Ruling Letter (NY) N042191, dated November 20, 2008, regarding the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of a battery-operated paint roller identified as the “TurboRoll Battery Paint Roller” (TurboRoll). In that ruling, Customs and Border Protection (CBP) classified the TurboRoll under heading 9603, HTSUS, which provides in relevant part for “[P]aint pads and rollers”, by application of General Rule of Interpretation (GRI) 3(b). We have reviewed NY N042191 and found it to be incorrect. Accordingly, for the reasons set forth below, we intend to modify that ruling.
CBP also intends to revoke NY 870922, dated February 21, 1992, regarding the classification of the Wagner Cordless Power Roller (Cordless Roller) under the HTSUS. In that ruling, CBP classified the Cordless Roller under heading 8413, HTSUS (1992), which provides for “[O]ther reciprocating pumps”, by application of GRI 3(b).
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, notice proposing to revoke NY N042191 and NY 870922 was published on June 1, 2011, in Volume 45, Number 23, of the Customs Bulletin. CBP received no comments in response to this notice.
FACTS:
In NY N042191, CBP described the TurboRoll as follows:
This roller features a 24 inch rigid plastic cylinder with a duckbill valve on one end, a plastic plunger that travels inside the cylinder, a plunger head that contains two sealing o-rings, a battery-operated handle and a roller arm with a nine inch roller nap. The roller operates by having a continuous flow of paint moved through the cylinder by the action of the motorized pump.
A sample of the TurboRoll was submitted. A picture is included below:
TurboRoll Battery Paint Roller
of NY N042191
ISSUE:
What is the correct classification under the HTSUS of the TurboRoll?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation. 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 2011 HTSUS provisions under consideration are as follows:
8413 Pumps for liquids, whether or not fitted with a measuring device; liquid elevators; part thereof:
8413.50.00 Other reciprocating positive displacement pumps
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9603 Brooms, brushes (including brushes constituting parts of machines, appliances or vehicles), hand-operated mechanical floor sweepers, not motorized, mops and feather dusters; prepared knots and tufts for broom or brush making; paint pads and rollers; squeegees (other than roller squeegees):
9603.40 Paint, distemper, varnish or similar brushes (other than brushes of subheading 9603.30); paint pads and rollers:
9603.40.20 Paint rollers
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The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. It is CBP’s practice to consult, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89–80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN to Heading 84.13 states, in pertinent part:
This heading covers most machines and appliances for raising or otherwise continuously displacing volumes of liquids (including molten metal and wet concrete), whether they are operated by hand or by any kind of power unit, integral or otherwise.
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(A) RECIPROCATING POSITIVE DISPLACEMENT PUMPS
These use the linear suction or forcing action of a piston or plunger driven within a cylinder, the inlet and outlet being regulated by valves. “Single-acting” pumps utilise the thrust or suction of one end of the piston only; “double-acting” types pump at both ends of the piston thus using both the forward and reverse strokes. In simple “lift” pumps the liquid is merely raised by suction and discharged against atmospheric pressure. In “force” pumps, the compression stroke is used, in addition to the suction stroke, to force the liquid to heights or against pressure. Multi-cylinder pumps are used for increased output. The cylinders may be either in line or in a star shape.
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The EN to Heading 96.03 states, in pertinent part:
(F) PAINT PADS AND ROLLERS; SQUEEGEES (OTHER THAN ROLLER SQUEEGEES)
Paint rollers consist of a roller covered with lambskin or other material mounted on a handle.
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In NY N042191, you argued that the TurboRoll was properly classified as a pump in heading 8413, HTSUS. CBP determined that the TurboRoll was classified pursuant to GRI 3(b) as a composite good under heading 9603, HTSUS, specifically under subheading 9603.40.20, HTSUS, which provides for “[P]aint pads and rollers; … : [P]aint pads and rollers: Paint rollers”. CBP found that the essential character was imparted by the paint roller component that actually applies the paint to the surface being painted.
In Wagner Spray Tech Corp., Inc., v. United States, 493 F. Supp. 2d 1265, (Ct. Int’l. Trade 2007), the Court of International Trade (CIT) considered the classification of paint rollers identified as the “Paint-N-Roll”, “PaintMate Plus”, “StainMate”, and “Trim-It”. CBP had previously described these articles in the following manner:
Although each model differs slightly both in appearance and individual characteristics, they operate essentially on the same principle. By inserting a fill tube into a can of paint or stain and subsequently attaching it to the bottom of the product’s arm and opening the fill valve, a vacuum is created which draws the liquid into a reservoir located within the arm. This is done by pulling back on a plunger at the handle, forcing in the liquid. Once the reservoir is full, the valve is closed, the liquid is under pressure, and the product is ready for use. In the Paint-N-Roll Plus, the liquid is dispensed by pushing forward a plunger that forces it though the device’s nozzles and onto the roller. In the remaining three models, a trigger is used to dispense a controlled amount of liquid from the reservoir onto the pad or roller. In all four models it is the pad or roller that dispenses the paint or stain onto a surface.
See Headquarters Ruling Letter (HQ) 966933, dated April 27, 2004.
Heading 9603, HTSUS, is an eo nomine provision, in that it identifies “paint rollers” by name. According to the CIT in Wagner:
An eo nomine provision describes goods according to their common and commercial meaning. A court may rely upon its own understanding of the terms used consult lexicography or other reliable sources to define the tariff term. In addition, an eo nomine provision that names an article without terms of limitation, absent evidence of a contrary legislative intent, is deemed to include all forms of the article. Furthermore, an article which has been improved or amplified but whose essential characteristic is preserved or only incidentally altered is not excluded from an unlimited eo nomine statutory designation.
Wagner, 493 F. Supp. 2d at 1269-1270 (internal citations and quotations omitted). The CIT went on to define a “paint roller” as “one that consists typically of a rotating cylinder … covered with an absorbent material and mounted on a handle so that the cylinder can be dipped into paint or otherwise … be supplied with paint and rolled over a flat surface … so as to apply the paint.” Wagner, 493 F. Supp. 2d at 1271 (citing Webster’s Third New Int’l Dictionary (1986) at 1622).
With respect to the products at issue in Wagner, the CIT also noted that:
Each Wagner product contains a paint pad or a paint roller, which resembles a conventional pad or roller, and the function of each product is identical to traditional pads and rollers, to spread paint onto surfaces. The method by which this is accomplished does not warrant classification based only on component parts of the products, nor does it render the products prima facie classifiable in more than one heading.
Wagner, 493 F. Supp. 2d at 1271 (emphasis added). Noting that “an eo nomine designation includes all forms of the product, including improved forms” (Id., at 1271, citing Chevron Chemical Co. v. United States, 59 F. Supp. 2d 1361 (Ct. Int’l. Trade 1999)), the CIT held that “[h]eading 9603 properly classifies the products according to their common and commercial meaning as paint pads or rollers, albeit amplified by the patented Wagner roller core and handle.” Wagner, 493 F. Supp. 2d at 1271.
Like the products considered in Wagner, the TurboRoll is a “paint roller” as defined above. It consists of a rotating cylinder covered with an absorbent material, which is mounted on a handle so that the cylinder can be supplied with paint and rolled over a flat surface. See Wagner, 493 F. Supp. 2d at 1271. The TurboRoll is an improved version of the traditional paint roller in that it contains a mechanism which supplies paint directly to the absorbent material on the rotating cylinder. The user no longer has to repeatedly dip the rotating cylinder in a tray of paint to coat the absorbent surface. However, its function is identical to traditional rollers – it is used to spread paint onto surfaces. As stated by the CIT, “[t]he method by which this is accomplished does not warrant classification based on only component parts of the products, nor does it render the products prima facie classifiable in more than one heading.” Id. Therefore, the TurboRoll is properly classified by operation of GRI 1 in heading 9603, HTSUS, specifically under subheading 9603.40.20, HTSUS, which provides for: “[P]aint pads and rollers; … : [P]aint pads and rollers: Paint rollers”.
Inasmuch as this good is described in full by heading 9603, HTSUS, as a paint roller, its classification under heading 8413, HTSUS, by GRI 3(b) is precluded.
Our analysis also applies to the classification of Wagner's Cordless Roller, a hand-held paint roller fitted with a battery-operated pump, which we classified in NY 870922 under heading 8413, HTSUS, specifically in subheading 8413.50.00, the provision for "Other reciprocating positive displacement pumps." As the Cordless Roller is substantially similar to the TurboRoll, we find that it is properly classified by operation of GRI 1 under heading 9603, HTSUS, as a paint roller, based on all of the foregoing.
HOLDING:
By application of GRI 1, the TurboRoll Battery Paint Roller is classified under heading 9603, HTSUS, specifically in subheading 9603.40.20, HTSUS, which provides in relevant part for “Brooms, brushes (including brushes constituting parts of machines, appliances or vehicles), hand-operated
mechanical floor sweepers, not motorized, mops and feather dusters; prepared knots and tufts for broom or brush making; paint pads and rollers; squeegees (other than roller squeegees): Paint, distemper, varnish or similar brushes (other than brushes of subheading 9603.30); paint pads and rollers: Paint rollers”. The column one, general rate of duty is 7.5% ad valorem.
Duty rates are provided for convenience only 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.
EFFECT ON OTHER RULINGS:
In accordance with the above analysis, NY N042191, dated November 20, 2008, is hereby MODIFIED and NY 870922, dated February 21, 1992, is hereby REVOKED.
In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division