CLA-2 RR:CR:TE 964315 RH
Port Director
U.S. Customs Service
11099 South La Cienaga Blvd.
Los Angeles, CA 90045
RE: Protest number 2704-00-101321; classification of prayer cards;
lithography; greeting cards
Dear Sir:
This is in reply to your memorandum of June 14, 2000, forwarding Application for Further Review of Protest (AFR) number 2704-00-101321 to our office for review.
San Francis Imports, Inc., timely filed the AFR on June 2, 2000, and headquarters review is warranted pursuant to 19 CFR §§174.24 and 174.25.
At the time of entry and liquidation of the prayer card sheets, merchandise classifiable under subheading 9903.08.11, HTSUS (affecting articles in subheading 4911.91.20, HTSUS (lithographs)), was subject to 100 percent ad valorem duties imposed on a list of products of certain member states of the European Community (EC) as a result of the EC’s failure to implement the recommendations and ruling of the World Trade Organization (WTO) Dispute Settlement Body concerning the EC’s regime for the importation, sale and distribution of bananas.
On July 6, 2001, the Office of the United States Trade Representative (USTR) filed a notice of termination of action, monitoring, and request for public comments, stating that the EC is taking satisfactory measures to grant the rights of the United States under the WTO Agreement, and proposing to terminate the 100 percent ad valorem duties on the list of EC products, including lithographs, and to monitor the EC’s compliance.
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The termination of increased duties is effective with respect to articles entered, or withdrawn from warehouse, for consumption, on or after July 1, 2001, except that the termination of increased duties on subheading 4911.91.20, HTSUS, is effective with respect to articles entered, or withdrawn from warehouse, for consumption, on or after March 3, 1999, for which unliquidated entries or entries subject to timely protest are pending before Customs. This action by the USTR effectively voids the sanctions against lithographs ab initio. A copy of the Federal Register notice is attached.
FACTS:
On December 30, 1999, San Francis Imports, Inc., entered a shipment of sheets of prayer cards at the Port of Los Angeles as greeting cards under subheading 4909.00.4020, HTSUS. Customs changed the classification of the merchandise and liquidated the entry under subheading 4911.91.2040, HTSUS, which provides for other lithographs.
The merchandise at issue is a micro-perforated 8½” by 11” sheet containing eight (8) religious pictures (“prayer cards”). Each prayer card on the sheet measures approximately 2½” by 4”. The sheets are printed in an “offset process” whereby ink is spread on a metal plate, then transferred to an intermediary surface such as rubber blanket, and finally applied to paper by pressing the paper against the intermediary surface. After importation, printed textual greetings, messages or announcements will be placed on the reverse side of the cards.
ISSUE:
What is the correct classification of the imported sheets of prayer cards?
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (“GRIs”). GRI 1 provides that classification shall be determined according to the terms of the heading 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 GRI may then be applied. Moreover, in interpreting the headings and subheadings, Customs looks to the Harmonized Commodity Description and Coding System Explanatory Notes (EN), which are not legally binding, but are recognized as the official interpretation of the Harmonized System at the international level. It is Customs practice to follow, whenever possible, the terms of the EN when interpreting the HTSUS.
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Heading 4909, HTSUS, provides for “Printed or illustrated postcards; printed cards bearing personal greetings, messages or announcements, whether or not illustrated, with or without envelopes or trimmings.”
The protestant states that the prayer card sheets are all compromised [sic] of a set of eight cards on one sheet attached to a message, and are imported as “PAGE card SHEET with a MESSAGE and not individually as cards.” The protestant further states that the sheets are never sold as individually cut cards.
The terms of the heading are clear and explicit. For merchandise to be classified in the second part of heading 4909 (after the semicolon), it must contain written text in the form of a personal greeting, message or announcement.
The terms “greeting”, “message” and “announcement” are defined in Webster’s Deluxe Unabridged Dictionary, 1979, as:
Greeting – the act or words of a person who greets
Message – any communication, written or oral, sent between persons
Announcement – a written or printed notice
To “illustrate” is defined in Webster’s New Collegiate Dictionary, (1981) as “a picture or diagram that helps make something clear or attractive.”
We examined samples of the sheets in their condition as imported. At the top of each sheet approximately one inch across the width of the page is the following printed material:
© San Francis Printed in Italy 1) Load card sheets in copier tray [same instructions
Imports by CROMO N.B. 2) Type information on template in Spanish]
Barbank using your typewriter
8 UP 3) Verify copy to insure
8-FCR276 G adequate alignment
4) Tear cards carefully on the microperforations
The prayer sheets in question do not satisfy the terms of heading 4909. The individual cards do not contain a greeting, message sent between persons or an announcement. The information on the top of the sheet is information on the product aimed at the ultimate purchaser or user. Moreover, the fact that the card bears pictorial matter is inconsequential as the terms of the heading provides for printed cards whether or not illustrated. An illustration, without the required message, etc., does not satisfy the terms of the heading. Accordingly, we find that the prayer card sheets are not greeting cards of heading 4909, HTSUS.
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Next, the protestant asserts that its imported sheets of prayer cards are not classifiable under subheading 4911.91.2040, HTSUS, as lithographs, stating that the method used to print the subject sheets is a different process. The distinction between lithography made by hand by an artist and lithography or offset lithography in which the design is drawn or photographically reproduced was set forth in detail in the Customs Bulletin on October 18, 2000, Vol. 34, No. 41 & 42, in a ruling (HQ 964035) reclassifying offset printing posters under subheading 4911.91.2020, HTSUS, which provides for, among other things, lithograph on paper or paperboard. However, for the protestant’s convenience we will incorporate that discussion in this ruling.
“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.
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.
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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.
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.
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 merchandise imported by San Francis Imports 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 sheets are not lithographs as provided for under heading 9702, HTSUS, this does not in any way preclude their classification as “lithographs” in heading 4911, HTSUS.
Subheading 4911.91.20, HTSUS, 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, HTSUS, 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
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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 4911.91.2040, HTSUS.
HOLDING:
The protest should be DENIED. The merchandise in question is classifiable under subheading 4911.91.2040, HTSUS, at the rate of 4¢/kg. However, in accordance with the USTR notice, the protestant is entitled to obtain a refund of the 100 percent duties paid (less the amount due as a result of classification under subheading 4911.91.2040, HTSUS).
Instructions to the field on procedures concerning the refund of duties for entries subject to timely protest, as well as for unliquidated entries, will be issued shortly.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs 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 Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division
Enclosure