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HQ 085839


February 16, 1990

CLA-1 CO:R:C:G 085839 KWM

CATEGORY: CLASSIFICATION

TARIFF NO.: 4823.90.6500; 4911.10.0080

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

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