CLA-1 CO:R:C:G 085839 KWM
Mr. James G. Meagley
Phillips, Lytle, Hitchcock, Blaine & Huber
3400 Marine Midland Center
Buffalo, New York 14203
RE: Color cards; printed matter; paper
Dear Mr. Meagley:
We have received your correspondence dated October 12, 1990,
requesting reconsideration of our classification ruling, HRL
083719. After reviewing the information provided, we are of the
opinion that HRL 083719 is correct, and we decline to revoke or
modify that ruling.
FACTS:
Headquarters Ruling Letter (HRL) 083719, dated June 6, 1989,
classified certain "color cards" and colored sheets of paper.
The goods at issue consisted of color samples, in a variety of
shades or finishes, which have been affixed to paper sheets or
cards. The finished products are used as "a visual display of a
product's available colors, shades or finishes to a potential
purchaser/user to make a selection." The goods are produced
using a McCorquodale machine, and are imported from Canada.
The samples which accompanied your original request, and
were the subject of HRL 083719, were unavailable for reference
during our consideration of the instant case. However, we have
received from your office additional samples which we understand
are representative of the goods submitted for HRL 083719.
ISSUE:
How are these goods classified under the Harmonized Tariff
Schedule of the United States Annotated?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA) is made in accordance with the
General Rules of Interpretation (GRI's) 1 through 5. 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. Then, if GRI 1 fails to
classify the goods, and if the headings and legal notes do not
otherwise require, the remaining GRI's may be applied, taken in
order.
In reviewing the headings eligible for classification of
these goods, we note that suitable headings may be found in both
Chapters 48 and 49, HTSUSA. Legal Note 11 to Chapter 48 points
out one distinction between the two chapters, that based on the
presence of "printed matter." Legal Note 11 provides:
11. Except for the goods of heading No. 48.14 or 48.21,
paper, paperboard, cellulose wadding and articles
thereof, printed with motifs, characters or pictorial
representations, which are not merely incidental to the
use of the goods, fall in Chapter 49. (Emphasis added)
The effect of the above note is to divide articles of the
enumerated materials into two groups: those with motifs,
characters or printing which are not merely incidental to the use
of the goods, and those with printing, etc., which is merely
incidental to the use of the goods.
The finding in HRL 083719 was based on the determination
that the color cards did not constitute "printed matter" for
inclusion in Chapter 49 because: first, they were not produced on
a "printing machine"; and second, the essential nature of the
color deposits was not that of a "motif, character or pictorial
representation." Your request for reconsideration, as we
understand it, asserts the proposition that the instant goods
consist of both printed matter and color deposits, and that the
printed matter is not merely incidental to the primary use of the
goods. According to your letter, therefore, the goods at issue
here are more properly included in Chapter 49 as printed matter
by virtue of Legal Note 11 to Chapter 48, HTSUSA.
The issue in this case centers on the determination of what
or how much "printed matter" crosses the boundary into "not
merely incidental" to the primary use of the product. As your
letter indicates, our inquiry must begin with a determination of
what constitutes the "primary use" of these items. Your letter
asserts that the primary use of these items is for "trade
advertising material." However, the scope of "trade advertising
material" is open to debate. Those terms may include anything
from a presentation of technical data relevant only to the few
individuals who need it, to colorful flyers available at the
retail point of purchase. We are of the opinion that most of the
samples you have provided with your reconsideration request are
of the class of goods commonly used at the point of purchase in
the stream of retail commerce. In other words, they are a sales
tool.
The samples titled "Glidden Spred Wall & Spred Lo-Lustre" (2
cards), "Montgomery Ward Interior Colors", "Ernst Premium 5 Year
Paints", "Glidden Endurance Exterior Stains", "Glidden Endurance
Deck Stain" and "Amway Artistry Cosmetics" are all items designed
to sell color-dependent products. We cannot agree with your
assertion that their primary use would be thwarted by the
absence of the printed matter. In our opinion, the primary use
of these goods is for the selection, by a purchaser, of an
appropriate color for the paint, etc., they may purchase ("a
visual display of a product's available colors, shades or
finishes . . ."). It is irrelevant to that decision what the
color is named, what stock number is associated with it, or how
many gallons will be required. What matters in that instance are
the colors available. In contrast, the absence of the color
samples would defeat the primary use of the goods. A simple list
of available colors, without samples, would clearly not fulfill
the same purpose. The color samples, then, are the sine qua non
for the primary use of the goods.
In addition to the above, we are supported in our decision
by the Explanatory Notes to Chapter 49. Assuming, arguendo, that
the primary purpose of these goods is not limited to color
selection, the language of the tariff schedule would then, in our
opinion, be ambiguous and subject to different interpretations.
In such a case, Customs routinely turns to the Explanatory Notes
for guidance. The Explanatory Notes, while not legally binding,
represent the official interpretation of the scope of the tariff
headings at the international level. With regard to "printed
matter" of Chapter 49, the General Explanatory Notes to that
chapter provide:
. . . 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.
Thus, even if we cannot say, prima facie, that the printed
matter is or is not merely incidental, it is clear that the
essential nature and use of the goods is determined not by any
printing, but by the color samples.
In addition to the samples discussed above, we have also
considered those titled "Pratt & Lambert Forecast Colors" and
"Valvoline Tectyl 185GW Rust Preventive Coatings." The analysis
above applies to the Pratt & Lambert Forecast Colors sample, and
we are of the opinion that the printed matter there does not
meet the criteria of Legal Note 11 to Chapter 48. However, the
Valvoline Tectyl Rust Coatings sample presents a significantly
different type of article. It contains considerably more
information regarding the product itself, especially information
of a technical nature. In our opinion, this type of information
is as important as the color choices available. We base our
conclusion on the nature of the product, its intended purchasers,
and what we believe to be their criteria for purchasing such a
product. In short, the choice of products presented for sale by
this item is not so color dependent that its essential nature is
determined by the color samples alone.
The final samples submitted to our office, the sheets of
color paper, are in our opinion not printed matter of Chapter 49.
We do not believe that the limited printing on the reverse of the
samples is more than merely incidental to the primary use of the
goods.
In reviewing the samples provided in this case, we have
decided not to establish a "bright line" test, based on a
comparison of textual versus other material, printed versus other
matter, or on a minimum percentage of "printed matter." Instead,
we note the text of Legal Note 11 to Chapter 48, which provides
for the consideration of the "primary use" of the goods. Such
language, by its very terms, dictates a case-by-case
consideration of an imported product. We are of the opinion,
however, with regard to the submissions in this case, that the
mere identification of an article, where the display of that
article constitutes the primary use of the imported goods, does
not qualify as more than merely incidental.
HOLDING:
All of the samples provided for this reconsideration, with
the exception of the sample titled "Valvoline Tectyl 185GW Rust
Preventive Coatings", are classified in subheading 4823.90.6500,
HTSUSA:
4823 Other paper, paperboard, cellulose wadding and
webs of cellulose fibers, cut to size or shape;
* * * * *
4823.90 Other:
Other:
Other:
Of coated paper or paperboard:
4823.90.6500 Other ...................
The ordinary duty rate on these goods is 5.6% ad valorem.
Articles originating in Canada and classified in this subheading
are eligible for a duty rate of 3.3% ad valorem under the United
States-Canada Free Trade Act, if all applicable requirements are
met. In addition, please note that goods such as these may be
subject to the provisions of subheading 9903.42.5000, HTSUSA, if
imported from the country specified in that subheading.
The "Valvoline" sample is classified in subheading
4911.10.0080, HTSUSA, as trade advertising material:
4911 Other printed matter, including printed pictures
and photographs:
4911.10 Trade advertising material, commercial
catalogs and the like
4911.10.0080 Other ..................................
These goods are admitted to the United States at a free rate
of duty.
Our classification is based on an examination of the
specific goods submitted for this reconsideration. In addition,
it is based on our determination, according to GRI 1, that the
printed matter thereon does not meet the terms of Legal Note 11
to Chapter 48 requiring that the printed matter be "not merely
incidental to the primary use of the goods."
Sincerely,
John A. Durant, Director
Commercial Rulings Division