CLA-2 CO:R:C:G 086470 KWM
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.
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
LAW AND ANALYSIS:
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
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
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
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
A copy of this decision should be attached to the CF 19 to be returned to the protestant.
John A. Durant