CLA-2 CO:R:C:G 086470 KWM

TARIFF: 4819.50.3000

District Director
U.S. Customhouse
127 North Water Street
Ogdensburg, New York 13669

Attn: SIS C.L. Noyes

RE: Decision on Application for Further Review of Protest No. 0712-89-000626; Paperboard record sleeves; Not printed matter; Containers.

Dear Sir:

This protest was filed against your decision in the liquidation of an entry consisting of several paper and printed goods, including record "jackets" and record "sleeves." The goods were manufactured in Canada and imported via Champlain, New York. Our decision follows.


The goods were entered on June 12, 1990, and liquidated on July 7, 1990. The subject protest was timely filed and received by Customs on October 4, 1989. It has been deemed to qualify for further review under the provisions of Section 174.24 of the Customs Regulations.

The merchandise at issue consists of record covers/jackets/sleeves. The importer has suggested that the goods should be classified as printed matter in subheading 4911.99.60, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Customs proposes to classify the goods in subheading 4819.50.40, HTSUSA, as other paperboard containers.

The items measure approximately 12 inches by 12 inches, and are approximately 1/8 inch thick. In other words, they are large flat 'envelopes' or 'pockets' of a size suitable for the transportation, storage and protection of long-playing vinyl records. Both of the samples submitted with the importer's Memorandum in Support of Protest are printed with textual and graphic artwork, images and photographs.


Are the goods classified under subheading 4819.50.40, HTSUSA, or under subheading 4911.99.60, HTSUSA?


The goods at issue

Counsel for the importer, in the Memorandum in Support of Protest, distinguishes between record"jackets" and record "sleeves." Customs also appears to refer to both "jackets" and "sleeves." The distinction, as we understand it, is that sleeves are "thin paper or plastic envelopes in which albums are placed prior to insertion into record jackets" (Memorandum, at 3). Jackets, then, are the "outer container for record albums, and are printed lithographically . . . made from durable, heavy weight cardboard or paperboard . . ." (Memorandum, at 3). Counsel's submission does not indicate the basis for this distinction, but we presume it is founded in common usage and experience.

While we may agree that record albums are sold encased in both an inner "sleeve" and an outer "jacket", we do not believe that the two are distinguishable for tariff classification purposes. Both of these items could be described as sleeves; the difference being a matter of convenience for distinguishing between the two. In interpreting a term of the tariff schedule, Customs cannot expand or limit the scope of a tariff provision. In this case, we have concluded that the drafters of the HTSUSA intended to include the instant items under the terms "record sleeve."


Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI's). The systematic detail of the harmonized system 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 relevant 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's may be applied, taken in order.

Counsel initially asserts that the record sleeves may be classified prima facie under either heading 4911, HTSUSA, as other printed matter, and under heading 4819, HTSUSA, as other packing containers. Therefore, by application of GRI 3(c), the heading which occurs last in numerical order is the preferred classification. We disagree. First, we do not believe that a GRI 3(c) analysis is necessary. Under GRI 1, we look to the heading terms and the legal notes to classify goods. While both headings may describe the goods, Legal Note 11 to Chapter 48, HTSUSA, is dispositive to classification, precluding a GRI 3(c) analysis. Legal Note 48-11, HTSUSA, provides that:

11. Except for articles of 4814 or 4921, paper, paperboard, cellulose wadding or articles thereof, printed with motifs, characters, pictorial representations, which are not merely incidental to the primary use of the goods, fall in Chapter 49.

Therefore, a determination here as to whether or not the printing on the record sleeves is ". . . not merely incidental to the primary use of the goods . . ." will serve to exclude either Chapter 48 or 49, HTSUSA from further consideration. No two equally descriptive four-digit headings will be in contention.

Counsel for the importer argues that Legal Note 48-11 substantiates a GRI 3(c) classification in Chapter 49, HTSUSA. Since the note is dispositive, we address here the arguments made in that regard. Counsel asserts that record sleeves "are 'something more' than the usual container", and that the printing "add[s] a significant dimension to their actual use and purpose." There is no disagreement with a finding that the primary use of the record sleeve is as a container. The question is whether the printing is more than merely incidental to that use. Counsel cites two Headquarters Ruling Letters in support of that proposition. However, both rulings were issued under the auspices of the Tariff Schedules of the United States (TSUS), and are of limited value for classifying goods under the HTSUSA.

Initially, we note, as does counsel for the importer, that the language of the printed matter provisions in both the TSUS and HTSUSA are similar. And, TSUS rulings are considered instructive where such similarities exist between the two nomenclatures. However, they are not binding. Further, the implementation of the HTSUSA recognized that differences in classification would occur, particularly in those cases where the text and scheme of the HTSUSA require dissimilar treatment. We believe such dissimilar treatment is indicated here. Record sleeves and similar goods are specifically recognized as containers under the HTSUSA. The terms of the headings in Chapter 48, the language of the Explanatory Notes, and the juxtaposition of Chapter 48 and 49 in the tariff structure all point to a specific classification intent. The Explanatory Notes, which constitute the official interpretation of the tariff at the international level, provide:

EN 48.19(A) The articles of this group may be printed, e.g., with the name of the merchant, directions for use, illustrations . . .

General EN, Chapter 49 With the few exceptions listed below, this Chapter covers all printed matter of which the essential nature and use is determined by the fact of its being printed with motifs, characters or pictorial representations . . .

(Emphasis added). The findings of the cited rulings, that the printing adds a significant dimension to the goods, that record sleeves are separate and distinct articles of commerce, and even that for marking purposes the printing may not be merely incidental, do not carry sufficient weight to warrant the decision that counsel argues. We are of the opinion that the rationale under the TSUS, the alternate headings and tariff structure of the HTSUSA, and the provisions of the Explanatory Notes require a dissimilar finding in this case, under the HTSUSA.

The primary nature and use of these goods is not determined by the fact that they are printed. The record sleeves are first and foremost containers designed to transport, protect and store the vinyl albums they contain. Many of the goods classified in Chapter 48, HTSUSA, may be printed over their entire exposed surfaces, but are still considered containers. For example, the Explanatory Notes describe seed packets, covered with illustrations and product information. We cannot think of any container printed with more information than a seed packet. It is illustrative, informative, and serves as an advertising media. Yet, it is a container, rather than printed matter. Record sleeves have similar features. That they are printed with pictorial, and textual material does not more than merely incidentally impact on their primary use for transportation, packing and sale of the albums. That the printing may have an incidental impact on the marketing of the merchandise is within the intended scope of the heading.

Within heading 4819, HTSUSA, subheading 4819.50.3000, HTSUSA, provides for "other packing containers, including record sleeves." As we stated above, it is our opinion that the terms "record sleeves" of subheading 4819.50.3000, HTSUSA, includes the instant goods. Therefore, by application of GRI 1, the record sleeves at issue here are classified in subheading 4819.50.3000, HTSUSA, as other packing containers, record sleeves.

U.S.- Canadian Free Trade Agreement

Articles that meet the definition of "goods originating in the territory of Canada" (see General Note 3(c)(vii)(B), HTSUSA) are subject to reduced rates of duty under the United States - Canada Free Trade Agreement Implementation Act of 1988. If the record sleeves constitute "goods originating in the territory of Canada," they may be entitled to a reduced duty rate. Counsel indicates (Memorandum, at 8) that blanket Customs Form (CF) 353's (country of origin certificates for goods originating in Canada) had been filed. At our request, those documents were provided in a letter from counsel dated January 17, 1991. The CF 353's indicate that the goods were produced in Canada and "that they comply with the origin requirements specified for those goods in the United States-Canada Free Trade Agreement." Based on the information provided, the goods will be entitled to reduced rates of duty.


The protest should be denied. However, we do not concur with the port of entry's classification. We find that the goods at issue, record sleeves made of paperboard and printed with textual and pictorial information, are classified by their primary use as containers for transportation, protection and storage of vinyl albums, the printing being merely incidental to the primary use. The goods fall under subheading 4819.50.3000, HTSUSA, which provides for, inter alia: cartons, boxes and other packing containers or paperboard, including record sleeves. The applicable rate of duty is 4.4 cents per kilogram. Under the United States- Canada Free Trade Agreement, the reduced rate of duty is 1.7 cents per kilogram.

These goods may be eligible for a reduced rate of duty under the provisions of the U.S. -Canada Free Trade Agreement, provided that the requirements of that act are met. The eligibility determination in this case is left to the port of entry upon receipt of the proper proof of eligibility.

A copy of this decision should be attached to the CF 19 to be returned to the protestant.


John A. Durant