# HQ W967374

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](http://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/*](http://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](http://www.customs.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