CLA-2 CO:R:C:G 085185 CB
John B. Pellegrini, Esq.
Ross & Hardies
529 Fifth Avenue
New York, NY 10017-4608
RE: Request for tariff classification and country of origin
marking for color charts, fandecks, fandecks replacement
strips, and architect kits.
Dear Mr. Pellegrini:
This ruling letter is in response to your letter of July 12,
1989, on behalf of Duha Color Services, requesting a tariff
classification and country of origin marking decision under the
Harmonized Tariff Schedule of the United States (HTSUSA), for
color charts, fandecks, fandecks replacement strips, and
architect kits from Canada.
FACTS:
Samples of four products were submitted for consideration.
The sample marked "a. Color Charts" is a single-sheet folding
leaflet or brochure which illustrates paint or stain colors. One
fourth of the surface carries "Color Chips" affixed to the
surface; the balance of the surface of the same face of the sheet
that holds the chips, is printed with colors of paint or stain.
The reverse of the sheet is printed, primarily with text, but
including minor illustrative material.
The samples marked "b. Fandeck", "c. Replacement Strips",
and "d. Architect Kit", are rectangular pieces of paper, printed
or painted in solid colors, arranged in three formats (bound
strips, loose strips in a plastic package, loose cards, standing
in one box), the purpose of which is to illustrate the colors of
paints or stains available.
ISSUE:
Whether the subject merchandise is classifiable as printed
matter in Chapter 49 of the HTSUSA and is the country of origin
marking sufficient?
-2-
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1 provides that the starting point is the
terms of the headings of the tariff and any relevant section or
chapter notes.
The inquirer claims that the subject merchandise is
classifiable in heading 4911, HTSUSA. Heading 4911, HTSUSA,
provides for other printed matter. The Explanatory Notes
indicate that this heading is intended to cover all printed
matter of the chapter not more particularly covered by any
preceding headings. Goods classified under this subheading must
therefore be, first of all, printed matter of the chapter. In
the alternative, the inquirer claims the goods are classifiable
in heading 4901, HTSUSA.
The Explanatory Notes for Chapter 49, which constitute the
official interpretation of the tariff at the international level,
state:
"With the few exceptions referred to 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.
. . .
For the purposes of this Chapter, the term 'printed'
includes not only reproduction by the several methods
of ordinary hand printing...or mechanical printing...
but also reproduction by duplicating machines...
photocopying....
While the Explanatory Notes broaden the meaning of the term
"printed" beyond normal types of printing processes, they still
specifically state that the essential nature of printed matter is
that it is printed with motifs, characters or pictorial
representations. The instant color cards and color chart lack
this prerequisite. The Explanatory Notes also definitely exclude
coloration from the ranks of printed matter. Therefore, it seems
definite that the instant color cards and color charts are not to
be included in Chapter 49, HTSUSA, as printed matter. Their
essential character lies in the colors deposited on them, not in
the printed text providing names of colors and advertising
matter.
-3-
In applying GRI 1 to the subject merchandise, the color
cards and color chart are classifiable under subheading
4823.90.6500, HTSUSA, which provides for other coated paper cut
to shape or size or other articles of coated paper dutiable at
the general rate of 5.6 percent ad valorem. Products of Canada
classified in this subheading are eligible for a duty rate of 4.4
percent ad valorem under the United States-Canada Free Trade
Agreement if all applicable regulations are met.
Having classified the subject merchandise, we must now
address the country of origin marking issue. Section 304 of the
Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that,
unless excepted, every article of foreign origin imported into
the U.S. shall be marked in a conspicuous place as legibly,
indelibly, and permanently as the nature of the article (or
container) will permit, in such a manner as to indicate to the
ultimate purchaser in the U.S. the English name of the country of
origin of the article.
Part 134, Customs Regulations (19 CFR Part 134), implements
the country of origin marking requirements and exceptions of 19
U.S.C. 1304. Products can be excepted from marking in accordance
with 19 U.S.C. 1304(a)(3)(A-K). The exceptions are also set
forth in 19 CFR 134.32. The ultimate purchaser is defined in
section 134.1(d), Customs Regulations (19 CFR 134.1(d)), as
"generally the last person in the U.S. who will receive the
article in the form in which it was imported." If the imported
article is distributed as a gift, section 134.1(d)(4), Customs
Regulations (19 CFR 134.1(d)(4)), provides that the recipient is
the ultimate purchaser.
The importer claims that it is the ultimate purchaser of the
color card and brochures because it uses the subject merchandise
to advertise its products. Customs has held in a ruling that
imported articles that are to be used by the importer only as
samples to solicit orders of merchandise and are not otherwise
for sale or distribution, may be excepted from marking under 19
U.S.C. 1304(a)(3)(F). HQ 732082 (March 14, 1989). In that
ruling, Customs followed the reasoning that samples are the tools
of the trade for persons in the sales business. Containers are
excepted from marking under 19 CFR 134.22(d)(1).
HOLDING:
The subject color cards and color chart are classifiable
under subheading 4823.90.6500, HTSUSA, which provides for other
coated paper cut to shape or size or other articles of coated
paper dutiable at the rate of 5.6 percent ad valorem. Products
of Canada classified in this subheading are eligible for a duty
rate of 4.4 percent ad valorem under the United States-Canada
Free Trade Agreement if all applicable regulations are met.
-4-
The imported color cards and color chart that are to be used
by the importer only as samples to solicit orders of merchandise,
may be excepted from marking under 19 U.S.C. 1304(a)(3)(F).
Sincerely,
John Durant, Director
Commercial Rulings Division