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HQ 954852




May 4, 1994

CLA-2 CO:R:C:F 954852 ALS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9609.10.0000

District Director of Customs
2nd and Chestnut Streets
Room 102
Philadelphia, PA 19106-2999

RE: Request for Further Review of Protest 1101-93-100254 dated May 12, 1993, Concerning A Solid Paint Marker

Dear Mr. Knox:

This ruling is on a protest that was filed against your decision of February 12, 1993, in the liquidation of an entry covering the referenced product.

FACTS:

The merchandise under consideration is paint marker. It is a semi-solid stick of ketone resin, ethanol, color pigments, other additives, and usually titanium dioxide, encased in a hard plastic cylinder with a cap at one end. When not in use the cap is tightly secured to the cylinder to keep the content thereof from drying out and becoming unusable. The subject item is used to mark metal, wood, plastic, glass, and other types of surfaces.

ISSUE:

Is the product under consideration a paint?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI'S) taken in order.
GRI 1 provides that the classification is determined first in - 2 -
accordance with the terms of the heading and any relative section and chapter notes. If GRI 1 fails to classify the goods and if the heading and legal notes do not otherwise require, the remaining GRI's are applied taken in order.

In considering the classification of the subject product, we note that counsel states that it contains all the ingredients of paint in semi-solid form and should be classified as paint. Counsel states that it is used to mark the surface of heavy metal articles, including mill products, for identification purposes. We agree that the ingredients found in the instant product are the type of ingredients found in paint. These ingredients are also the type of ingredients found in ink.

We note that the "paint" is packaged in such a way as to facilitate its use as a marker, i.e., the cylinder serves as more than a storage medium. The item is something more than a semi-solid paint. Although it might be particularly suitable for marking metal, it IS not used to coat or decorate the surface to which it is applied as would be true of a paint. It is not applied for the above purpose nor is it applied in any of the methods in which paint is normally applied.

One is not painting when applying the product. The primary purpose of the article, as stated by counsel, is to mark items. While the medium that makes a viable mark may be in the nature of paint, the article under consideration is, as previously noted, something more than paint.

While counsel focuses on the word crayon and takes a very narrow definition thereof, we note that heading 9609, HTSUSA, under which the item was classified covers many products other than crayons of the type discussed by counsel. Further, we do not agree with counsel's conclusion that the use of crayons is limited to drawing or coloring. If it was intended that only a specific type of crayon was to be included in heading 9609, we believe the limitation would have been specified therein. We note, for example, the heading specifies drawing charcoals and writing or drawing chalk. We also note that crayons are made for other purposes, e.g., tire crayons which come in white and yellow and are used to mark tire damage or punctures.

In referring to the Explanatory Notes to the Harmonized Tariff System, counsel notes item (b)(1) to the Explanatory Notes to heading 96.09 which indicates that crayons and pastels are usually made of certain ingredients. We, however, note that the - 3 -
ingredients are not limited to those items. In fact, immediately above that listing is a sentence which reads:

The composition of pencil leads, chalk, pastels and crayons, etc., varies according to their intended use.

Among the items specifically included in the aforementioned listing are "Litho- crayons, with a basis of lamp black, wax soap and tallow." Also included in the list are " 'Ceramic' crayons, with a basis of vitrifiable colours, fats, cocoa butter, wax, etc."

The Explanatory Notes to heading 96.09 further state that the pencils and crayons covered by that heading may be "encased in wood or plastics or in some cases in a sheath composed of layers of paper."

Based on the above, we have concluded that the subject product which is used for marking various surfaces is properly considered a crayon and that since it is encased in a rigid plastic sheath, is properly included with the group of items classified in heading 9609.

HOLDING:

An item composed of a stick of ketone resin, ethanol, color pigments, other additives, and usually titanium dioxide, encased in a hard plastic sheath, which is used for marking various surfaces, is considered a crayon and is classified in subheading 9609.10.0000, HTSUSA. Articles so classified are subject to a general rate of duty of 14? per gross plus 4.3 percent ad valorem.

Since the classification indicated above is the same as the classification under which the entry was liquidated, you are instructed to deny the protest in full.

A copy of this ruling should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be provided by your office to the protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with this decision - 4 -
must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

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