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HQ 965108




October 3, 2001

CLA-2 RR:CR:TE 965108 RH

CATEGORY: CLASSIFICATION

TARIFF NO.: 4911.92.2020

Port Director
U.S. Customs Service
330 Second Avenue South
Minneapolis, MN 55401

RE: Classification of Offset Printing Posters under 4911.91.2020, HTSUS; Protest Number 3501-01-100049

Dear Sir:

This is in response to the Application for Further Review of Protest (AFR) 3501-01-100049 that you forwarded to our office for review. The protest was timely filed by Nord Mark Inc., against the liquidation of certain offset printing posters under subheading 4911.91.2020 of the Harmonized Tariff Schedule of the United States (HTSUS). The protest covers 1 entry. The protestant claims that the posters are not produced by a lithographic process and are classifiable under subheading 4911.91.4020 of the HTSUS.

FACTS:

On March 16, 2001, the protestant entered a shipment of posters into the United States from Sweden under subheading 4911.91.4020, HTSUS. On May 10, 2001, Customs issued a CF 29 (Notice of Action) advising the protestant that the merchandise would be classified under subheading 4911.91.2020, HTSUS, resulting in a rate advance. Customs liquidated the entry on May 25, 2001.

The imported posters are printed from pictures (not original art) from a Swedish artist, Carlson Larsson, who has been deceased for over 70 years. A letter submitted by the protestant states that the merchandise in question is printed “via an offset process and made photographically with small dots, made in large quantities, and has nothing to do with the weight of the paper.”

ISSUE:

What is the correct classification of the imported posters?

LAW AND ANALYSIS:

On August 16, 2000, Customs published a Proposed Notice in the Customs Bulletin, Vol. 34, No. 33, advising interested parties that it is revoking a treatment previously accorded to Clover Editions, as set forth in HQ 964035, of classifying merchandise described as offset printing posters under subheading 4911.91.4020, HTSUS, which provides for, among other things, posters other than lithograph on paper, and that it is revoking any other treatment previously accorded by Customs to substantially identical merchandise or any contrary ruling.

The final Notice and ruling letter were published in the Customs Bulletin on October 18, 2000, Vol. 34, No. 41 & 42, reclassifying the offset printing posters under subheading 4911.91.2020, HTSUS, which provides for, among other things, lithograph on paper or paperboard.

During the time frame set forth in the Customs notice, merchandise classifiable under subheading 9903.08.11, HTSUS (affecting articles in subheading 4911.91.2020, HTSUS (lithographs)), was subject to 100 percent ad valorem duties imposed on a list of products of certain member states of the European Community (EC) as a result of the EC’s failure to implement the recommendations and ruling of the World Trade Organization (WTO) Dispute Settlement Body concerning the EC’s regime for the importation, sale and distribution of bananas. Nord Mark Inc. did not file a claim of treatment during the notice period, or thereafter.

On July 6, 2001, the Office of the United States Trade Representative (USTR) filed a Notice of termination of action, monitoring, and request for public comments, stating that the EC is taking satisfactory measures to grant the rights of the United States under the WTO Agreement, and proposing to terminate the 100 percent ad valorem duties on the list of EC products, including lithographs, and to monitor the EC’s compliance.

The termination of increased duties is effective with respect to articles entered, or withdrawn from warehouse, for consumption, on or after July 1, 2001, except that the termination of increased duties on subheading 4911.91.2020, HTSUS, is effective with respect to articles entered, or withdrawn from warehouse, for
consumption, on or after March 3, 1999, for which unliquidated entries or entries subject to timely protest are pending before Customs. This action by the USTR effectively voids the sanctions against lithographs ab initio. A copy of the Federal Register notice is attached.

The protestant asserts that its posters are not classifiable under subheading 4911.91.2020, HTSUS, as lithographs, stating that a lithograph is a limited copy of an artwork, typically numbered in sequence, and printed using plates. The protestant further states that a poster is a regular print made in mass quantity and printed using a copy machine technology which produces a color copy containing small dots instead of a uniform flowing color reproduction.

The distinction between lithography made by hand by an artist and lithography or offset lithography in which the design is drawn or photographically reproduced was set forth in detail in the Customs Bulletin notice, referenced above (HQ 964035). However, for the protestant’s convenience we will incorporate that discussion in this ruling.

“Lithography” is defined in Webster’s Deluxe Unabridged Dictionary, 1979, at 1056, as:
the art or process of printing from a flat stone or metal plate by a method based on the repulsion between grease and water: the design is put on the surface with a greasy material, and then water and printing ink are successively applied; the greasy parts, which repel water, absorb the ink but the wet parts do not.

In Pocket Pal. A Graphic Arts Production Book, 1974, at 32, lithography is defined as:

Lithography uses the planographic method. The image and non-printing areas are essentially on the same plane of the surface of a thin metal plate, and the definition between them is maintained chemically. Printing is from a plane or flat surface, one which is neither raised nor depressed.

“Offset lithography” is defined in The Dictionary of Paper, 1980, at 288, as:

An adaptation of the principles of stone (or direct) lithography, in which the design is drawn or photographically reproduced upon a thin, flexible metal plate which is curved to fit a revolving cylinder. The design from this plate is transferred to or offset onto a rubber blanket carried upon another cylinder, which in turn transfers the design to the paper, cloth, metal, etc.

The term “offset” is defined in the same source, at 287, as:

A technique in printing by which the ink images are transferred from the plate first to an intermediate rubber blanket and then to the material being printed. This technique, which reduces plate wear and permits printing on rougher material, is most commonly associated with lithographic printing. For this reason, the word “offset” alone is sometimes used to indicate offset lithography.

In Pocket Pal. A Graphic Arts Production Book, 1974, at 32, in a discussion of “offset lithography”, it states:

Transferring the image from the plate to a rubber blanket before transfer to the paper is called the offset principle. Most lithography is printed in this way, and the term offset has become synonymous with lithography.

Heading 4911, HTSUS, provides for other printed matter including printed pictures and photographs. This heading includes pictures and photographs printed by lithography. Note 1(d) to chapter 49, HTSUS, states that this chapter does not cover “original engravings, prints or lithographs (heading 9702)....”

Heading 9702, HTSUS, provides for, among other things, original engravings, prints and lithographs. Note 2 to chapter 97, HTSUS, states:

For the purposes of heading 9702, the expression “original engravings, prints and lithographs” means impressions produced directly, in black and white or in color, of one or of several plates wholly executed by hand by the artist, irrespective of the process or of the material employed by him, but not including any mechanical or photomechanical process.

One of the determinative factors in the classification of this merchandise is the way in which the image is transferred, either directly from the plate to the paper, without the use of a mechanical or photomechanical process, as in the case of the lithographs of heading 9702, HTSUS, or indirectly, and with the use of a mechanical or photochemical process, as is the case of the lithographs provided for under heading 4911, HTSUS.

The merchandise imported by Nord Mark Inc. is not the result of the lithographic process provided for under heading 9702, HTSUS. The prints of heading 9702, HTSUS, are unique in that they are “original prints” produced directly by the artist, with a plate or stone created by him or her. The processing of these prints
involves a direct transfer from the stone or plate to the paper by any means other than “mechanical or photomechanical process.” As such, although the subject offset printing posters are not lithographs as provided for under heading 9702, HTSUS, this does not in any way preclude their classification as “lithographs” as provided for under a different heading, that is to say, heading 4911, HTSUS.

Subheading 4911.91.20, HTSUS, provides for lithographs on paper or paperboard which are the result of a lithographic process different from that provided for under heading 9702, HTSUS. Stated another way, the prints of subheading 4911.91.20, HTSUSA, are not produced directly by the artist via use of an original plate or stone, the transfer is a three step process from plate to intermediate blanket to paper, and the use of mechanical or photomechanical process is not excluded. In this case the word “offset” is used as an idiomatic term intended to refer to “lithographic offset process” which indicates an alternate printing process. As the subject merchandise is the result of such a lithographic offset process, it is properly provided for under subheading 4911.91.2020, HTSUSA. See, e.g., Headquarters Rulings Letter (HQ) 962891, and HQ 963605, dated November 16, 1999, and NY 856467, dated September 28, 1990, which classified similar merchandise in subheading 4911.91.2020, HTSUSA.

Finally, we note that a sample of the protestant’s poster was sent to a Customs laboratory for analysis prior to liquidation, which found that the poster was printed by a lithographic process [as described in the Customs Bulletin notice for merchandise classifiable under subheading 4911.91.2020, HTSUS].

HOLDING:

The protest should be DENIED. The merchandise in question is classifiable under subheading 4911.91.2020, HTSUS, at the rate of 4¢/kg. However, in accordance with the USTR notice, the protestant is entitled to obtain a refund of the 100 percent duties paid (less the amount due as a result of classification under subheading 4911.91.2020, HTSUS).

Instructions to the field on procedures concerning the refund of duties for entries subject to timely protest, as well as for unliquidated entries, will be issued shortly.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division

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