CLA-2 RR:CR:TE 964035 RH
Mr. Henri Borius
1032 Irving Street
San Francisco, CA 94122
Dear Mr. Borius:
This is in response to your letter of March 28, 2000 to the Customs Area Director, San Francisco which has been referred to us for reply in which you claim a treatment under 19 USC 1625(c) with respect to the classification under the Harmonized Tariff Schedule of the United States (HTSUS) for certain offset printing posters.
Pursuant to section 625(c), Tariff Act of 1930, as amended (19 U.S.C. 1625(c)), notice of the proposed revocation of treatment was published on August 16, 2000, in the Customs Bulletin, Volume 34, Number 33. Three comments were received.
The subject merchandise consists of offset printing posters which you state were previously imported by you under subheading 4911.91.4020, HTSUSA, which provides for, among other things, posters other than lithograph on paper. You object to Customs recent reclassification of this merchandise under subheading 4911.91.2020, HTSUSA, which provides for, among other things, lithograph on paper or paperboard.
Specifically, the merchandise involved in this matter was entered more than 50 times erroneously for at least eleven years, examined at least six times by Customs, and you were never informed the merchandise was misclassified. The erroneous classification was only discovered as a result of increased Customs review of the merchandise because of sanctions on certain products of the European Community as a consequence of the “banana war”.
What is the proper classification for the subject merchandise? Is there a treatment under the provisions of 19 USC 1625(c)(2) for your merchandise based on the above facts?
LAW AND ANALYSIS:
With respect to the first issue, classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification be determined according to the terms of the headings and any relative section or chapter notes, taken in order. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI.
The subject merchandise is referred to as “offset” printing posters. Before we arrive at the proper classification for this merchandise one must first understand the relevant concepts. “Lithography” is defined in Webster’s Deluxe Unabridged Dictionary, 1979, at 1056, as:
the art or process of printing from a flat stone or metal plate by a method based on the repulsion between grease and water: the design is put on the surface with a greasy material, and then water and printing ink are successively applied; the greasy parts, which repel water, absorb the ink but the wet parts do not. [Emphasis added]
In Pocket Pal. A Graphic Arts Production Book, 1974, at 32, lithography is defined as:
Lithography uses the planographic method. The image and non-printing areas are essentially on the same plane of the surface of a thin metal plate, and the definition between them is maintained chemically. Printing is from a plane or flat surface, one which is neither raised nor depressed.
“Offset lithography” is defined in The Dictionary of Paper, 1980, at 288, as:
An adaptation of the principles of stone (or direct) lithography, in which the design is drawn or photographically reproduced upon a thin, flexible metal plate which is curved to fit a revolving cylinder. The design from this plate is transferred to or offset onto a rubber blanket carried upon another cylinder, which in turn transfers the design to the paper, cloth, metal, etc.
The term “offset” is defined in the same source, at 287, as:
A technique in printing by which the ink images are transferred from the plate first to an intermediate rubber blanket and then to the material being printed. This technique, which reduces plate wear and permits printing on rougher material, is most commonly associated with lithographic printing. For this reason, the word “offset” alone is sometimes used to indicate offset lithography.
In Pocket Pal. A Graphic Arts Production Book, 1974, at 32, in a discussion of “offset lithography”, it states:
Transferring the image from the plate to a rubber blanket before transfer to the paper is called the offset principle. Most lithography is printed in this way, and the term offset has become synonymous with lithography.
As such, we emphasize that a critical concept in the classification of this merchandise is the understanding, as reflected in the above definitions, that the term “offset method” of printing is in fact, used to indicate a particular type of lithography, or stated another way, what may or may not be an adaptation of lithography. In the case of the subject merchandise, that adaptation is “offset lithography”.
There is some confusion with respect to the classification of this merchandise in as far as how merchandise, described by the above referenced terms, is provided for under the tariff. In this respect, there are two headings which merit review. Heading 4911, HTSUS, provides for other printed matter including printed pictures and photographs. This heading includes pictures and photographs printed by lithography. Note 1(d) to chapter 49, HTSUS, states that this chapter does not cover “original engravings, prints or lithographs (heading 9702)....”
Heading 9702, HTSUS, provides for, among other things, original engravings, prints and lithographs. Note 2 to chapter 97, HTSUS, states:
For the purposes of heading 9702, the expression “original engravings, prints and lithographs” means impressions produced directly, in black and white or in color, of one or of several plates wholly executed by hand by the artist, irrespective of the process or of the material employed by him, but not including any mechanical or photomechanical process.
As discussed in the paragraphs that follow, one of the determinative factors in the classification of this merchandise is the way in which the image is transferred, either directly from the plate to the paper, without the use of a mechanical or photomechanical process, as in the case of the lithographs of heading 9702, HTSUS, or indirectly, and with the use of a mechanical or photochemical process, as is the case of the lithographs provided for under heading 4911, HTSUS.
The subject merchandise is not the result of the lithographic process provided for under heading 9702, HTSUS. The prints of heading 9702, HTSUS, are unique in that they are “original prints” produced directly by the artist, with a plate or stone created by him or her. The processing of these prints involves a direct transfer from the stone or plate to the paper by any means other than “mechanical or photomechanical process.” As such, although the subject offset printing posters are not lithographs as provided for under heading 9702, HTSUS, this does not in any way preclude their classification as “lithographs” as provided for under a different heading, that is to say, heading 4911, HTSUS.
Subheading 4911.91.20, HTSUSA, provides for lithographs on paper or paperboard which are the result of a lithographic process different from that provided for under heading 9702, HTSUS. Stated another way, the prints of subheading 4911.91.20, HTSUSA, are not produced directly by the artist via use of an original plate or stone, the transfer is a three step process from plate to intermediate blanket to paper, and the use of mechanical or photomechanical process is not excluded. In this case the word “offset” is used as an idiomatic term intended to refer to “lithographic offset process” which indicates an alternate printing process. As the subject merchandise is the result of such a lithographic offset process, it is properly provided for under subheading 4911.91.2020, HTSUSA. See, e.g., Headquarters Rulings Letter (HQ) 962891, and HQ 963605, dated November 16, 1999, and NY 856467, dated September 28, 1990, which classified similar merchandise in subheading 4911.91.2020, HTSUSA.
With respect to the second issue, 19 USC 1625(c)(2) provides that a proposed interpretative ruling or decision which would have the effect of modifying the treatment previously accorded by Customs to substantially identical transaction shall be published in the Customs Bulletin for public comment and be effective 60 days after the date of publication of the final ruling or decision.
While no regulations have been published by Customs with respect to what constitutes a treatment, it is Customs opinion that the answer is dependent upon the facts and circumstances involved and that treatment is personal to each importer. The granting of treatment to one importer does not carry over to another importer of the same merchandise where different facts or circumstances are involved. Each claim must be looked at separately and a determination made under the specific facts and circumstances as to whether or not to grant a claim of treatment.
Under the facts and circumstances of this particular situation as set forth in the facts portion of this decision, it is Customs opinion that a treatment exists. Accordingly, the classification for merchandise which is the subject of this decision imported by you will be allowed under subheading 4911.91.4020, HTSUS, in the quantities and frequency of past importations by you of this merchandise until the effective date of the final publication of this ruling in the Customs Bulletin. Thereafter the merchandise must be entered in accordance with the classification set forth in the final ruling (i.e. subheading 4911.91.2020).
Other than for the classification and time frame set forth in the above paragraph, the subject merchandise is properly classified in subheading 4911.91.2020, HTSUSA.
If the subject merchandise consists of posters, it is classified in subheading 4911.91.2020, HTSUSA, which provides for other printed matter, including printed pictures and photographs: other: pictures, designs and photographs: printed not over 20 years at time of importation: other: lithographs on paper or paperboard: not over 0.51 mm in thickness: posters. The applicable general column one rate of duty is 6.6 cents/kg.
As the subject merchandise is classified in subheading 4911.91.2020, HTSUSA, and is a product of France, it is subject to the provisions of subheading 9903.08.11, HTSUSA, which makes this merchandise dutiable at the rate of 100 percent ad valorem.
The treatment previously accorded by Customs to the merchandise described in this ruling is hereby revoked. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
John Durant, Director
Commercial Rulings Division