CLA-2 OT:RR:CTF:TCM H085977 KSG
Port Director
U.S. Customs & Border Protection
555 Battery Street, Room 319
San Francisco, CA 94111
Re: Application for Further Review of Protest 2809-09-100539; Classification of certain binders
Dear Port Director:
This letter is in response to your memo dated December 17, 2009, forwarding the Application for Further Review of Protest 2809-09-100539 timely filed by counsel on behalf of Target Corporation Inc. (protestant). The protest is
against U.S. Customs and Border Protection’s (“CBP”) classification and liquidation of certain binders under the Harmonized Tariff Schedule of the United States (“HTSUS”). The AFR was amended on October 26, 2009, which will be considered as part of this file.
FACTS:
The merchandise that is the subject of this protest is identified as eight different
styles of binders that are described as follows:
Item # 081-13-0114, a three-ring binder consisting of a spine and core of art
paper board, metal rings, and polyvinyl chloride (“PVC”). The dimensions are
12.6” x 10.2” x 14” and it weighs approximately .38 pounds.
Item # 081-03-0270, a 1 ½ inch three-ring binder consisting of a spine and a
plastic core covered in nylon and polypropylene, featuring a nylon zipper
and polypropylene pockets.
Item # 081-13-0003, a three-ring binder featuring a chipboard core and spine
covered with PVC and polypropylene dividers. The dimensions are 12” x
11.4” x 1.5”.
Item #081-13-0113, a three-ring binder consisting of a paperboard core and
spine covered in vinyl or PVC. The dimensions are 10.25” x 11.875” x 1.625”
and it weighs approximately 1 pound.
Item # 081-13-0071, a three-ring velco strap binder with two inch rings, a
built-in expanding tab file and CD storage. It is made from a kraft board
core and spine covered with nylon and PVC. The dimensions are 12.4”
x 13” x 3.9”.
Item # 081-13-1995, a three-ring binder consisting of a cardboard core,
and a PVC cover with two pockets and 1” rings. The dimensions are
10.25” x 1.65” x 11.875”.
Item # 081-03-1059, a three-ring binder made of a paperboard core and
spine. The dimensions are 11 5/8” x 10” x 1 ¼”.
Item # 081-13-0131, a three-ring binder made of a paperboard core and
spine covered with polyester. The dimensions are 14” x 12” x 3”.
The binders were entered from May 24, 2008 and July 2, 2008, and
liquidated from April 3, 2009, to May 15, 2009. The binders were entered under
subheading 3926.10, and subheading 6307.90, HTSUS. The binders were
liquidated as entered.
On September 28, 2009, the protestant filed a protest asserting that the
binders should be entered at subheading 4820.30, HTSUS.
On October 26, 2009, the protestant filed an amended protest for style
# 081-03 -0270, stating that this style is made of propylene plastic and not paper or paperboard. No sample was submitted for any of the binders.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General
Rules of Interpretation (“GRI”). 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 GRI 2-6 may then be applied. The Explanatory
Notes (“EN”) to the Harmonized Commodity Description and Coding System, which
represent the official interpretation of the tariff at the International level, facilitate
classification under the HTSUS by offering guidance in understanding the scope
of the headings and GRI.
Heading 3926 covers “Other articles of plastics and articles of other materials of heading 3901 to 3914.”
Heading 4820, HTSUS, covers “Registers, account books, notebooks, order
books, receipt books, letter pads, memorandum pads, diaries and similar articles,
exercise books, blotting pads, binders (looseleaf or other), folders, file covers,
manifold business forms, interleaved carbon sets and other articles of stationary,
of paper or paperboard; albums for samples or for collections and book covers
(including cover boards and book jackets) of paper or paperboard.
Heading 6307, HTSUS, covers “Other Made Up Articles, including dress patterns.”
The Court of International Trade ruled in Global Sourcing Group, Inc. v.
U.S., 611 F. Supp. 2d 1367 (CIT 2009), that pursuant to GRI 1, binders made of rigid paperboard core, with one or more layers of foam padding and an outer covering of
either vinyl or textile fabric , having permanently affixed six or seven rings, pen loops,
various slots on the inside of the binders for business cards, and flat non-expandable
pockets on the inside or outside are properly classified in Heading 4820 by virtue of
GRI 1.
Accordingly, based on Global Sourcing Group the binders at issue, described
as being of paper or paperboard cores, are classified in Heading 4820, HTSUS.
However, binders that are not constructed of paper or paperboard cores
cannot be classified in accordance with GRI 1 and are not governed by Global
Sourcing Group. Binders constructed of more than one material that is prima
facie classifiable in more than one heading (i.e. heading 6307, heading 4820 or
heading 3926, HTSUS), are classified pursuant to GRI 3(b).
GRI 3(b) provides, in relevant part, that composite goods consisting of
different materials or made up of different components shall be classified as if
they consisted of the material or component that gives them their essential
character.
Explanatory Note Viii to GRI 3(b) explains, “the factor which determines
essential character will vary as between different kinds of goods. It may, for
example, be determined by the nature of the material or component, its bulk,
quantity, weight or value, or by the role of the constituent material in relation to
the use of the good.“
As such, the binders initially classified in Heading 3926, HTSUS, are
classified in heading 3926, HTSUS. CBP ruled in N009699, dated May 7,
2007, N019270, dated December 6, 2007, N033717, dated August 13, 2008,
and N1053318, that pursuant to GR1 3(b), plastic or PVC sheeting
three-ring binders are classified in subheading 3926.10, HTSUS. It was deter-
mined that the plastic provides the essential character to the binders.
HOLDING:
The protest should be granted in part and denied in part. The binders made
of paper or paperboard cores (all the styles except 0270) are properly classified in
Heading 4820, HTSUS, which provides for Registers, account books, notebooks,
order books, receipt books, letter pads, memorandum pads, diaries and similar
articles, exercise books, blotting pads, binders (looseleaf or other), folders, file
covers, manifold business forms, interleaved carbon sets and other articles of
stationary, of paper or paperboard; albums for samples or for collections and book
covers (including cover boards and book jackets) of paper or paperboard” which
provides for the General Column 1 rate of duty in effect at the time of entry was
duty-free.
The plastic core binders (style 0270) are properly classified in Heading 3926,
HTSUS, which provides for “Other articles of plastics and articles of other materials
of heading 3901 to 3914” which provides for the General Column 1 rate of duty in
effect at the time of entry was 5.3% ad valorem.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), 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 in accordance with the decision must be accomplished prior to mailing of the decision.
Sixty days from the date of the decision Regulations and Rulings of the Office of International Trade 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, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Ieva O’Rourke, Chief
Classification & Marking Branch