CLA-2 CO:R:C:G 087690 KWM
TARIFF: 4819.50.40
District Director
U.S. Customhouse
127 North Water Street
Ogdensburg, New York 13669
Attn: SIS C.L. Noyes
RE: Decision on Application for Further Review of Protest No.
0712-90-000244; Compact disc boxes; Folding boxes; Other packing
containers; Paperboard; Record sleeves; Not printed matter;
Printing merely incidental to primary use.
Dear Sir:
This protest was filed against your decision in the
liquidation of entry number 331-XXXXXXX-X, entered on XXXX XX,
XXXX and liquidated on XXXXXXX X, XXXX. The shipment contained
various items including compact disc boxes. The goods are
manufactured in Canada and imported via Champlain, New York. Our
decision follows.
FACTS:
The goods at issue here are described as "compact disc
boxes." They are thin, rectangular boxes designed to hold
compact disc recorded media for transport and sale. The boxes
measure approximately 12 inches in length, 6 inches in width,
and - inch in thickness. They are made from a single sheet of
paperboard, folded lengthwise such that a portion of paperboard
forms an inner partition or filler on the inside of the box. The
box is assembled by gluing the folded sheet in three locations on
two internal surfaces. A square plastic case containing the
recorded media is inserted into one end of the box. The folded
inner partition fills the remaining volume of the box, keeping
the plastic case/compact disc stationary. The ends are then
sealed by means of glue. It is our understanding that the length
of the box (twice the length of the plastic disc case) is for
display purposes. The plastic disc cases have inserts which
provide information about the recording. After the disc has been
purchased and transported home, the paperboard box is discarded.
The importer asserts two alternative classifications for
the boxes. First, subheading 4911.99.60, HTSUSA, as other
printed matter, is claimed. In the alternative, the importer
claims classification under subheading 4819.20.00, HTSUSA, as
folding cartons and boxes. Customs believes the proper
classification is subheading 4819.50.40, HTSUSA, providing for
other packing containers of paper or paperboard.
ISSUE:
Are the compact disc boxes classified as printed material
under heading 4911 of the Harmonized Tariff Schedule of the
United States?
If not, what is the proper classification for these goods?
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). 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.
Heading 4911, HTSUSA
Counsel for the importer first contends that the compact
disc boxes are classified under heading 4911, HTSUSA, as other
printed matter. That conclusion is based on a GRI 3(c) analysis.
Counsel asserts that both heading 4819, HTSUSA, and heading 4911,
HTSUSA provide for the goods: "[The] two headings [4819 and 4911,
HTSUSA] are equally descriptive." 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) is necessary. Under GRI 1, we look to the
heading terms and legal notes to classify goods. In their
memorandum, counsel asserts that application of Legal Note 11 to
Chapter 48, HTSUSA, substantiates the GRI 3(c) analysis. We
believe that Legal Note 11 to Chapter 48, HTSUSA, is dispositive,
precluding a GRI 3(c) analysis. It provides that:
11. Except for articles of heading 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 compact disc boxes 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.
Since Legal Note 11 is dispositive, we address here the
arguments made in that regard. Counsel asserts that the printing
on the boxes is essential to the promotion and marketing of the
compact discs: "providing pictorial and textual information about
the C.D. on the box for point of purchase displays is what
enhances its merchandising potential." This in turn "adds a
significant dimension to their use as containers. . .." The
memorandum is not clear whether the primary use of the boxes is
as a marketing and promotional device or as a container. The
primary use, in our opinion is a container for transportation,
packing and sale of the compact discs. That they are printed
with pictorial and textual material does not more than merely
incidentally impact on that primary use. The nature of the
construction of the box indicates that the package is designed
simply to facilitate placement of the compact disc in a retail
sales rack. This is not a marketing feature, it is merely an
change in the physical dimensions of the disc container for
storage purposes. That the printing may have an incidental
impact on the sale of the merchandise is within the intended
scope of the heading.
Next, counsel compares compact disc boxes to record jackets
and relies on a prior Headquarters Ruling Letter (HRL) number
070040, for the proposition that the printing is more than merely
incidental. With regard to the prior ruling letter, HRL 070040
was issued under the auspices of the Tariff Schedules of the
United States (TSUS), and may be considered for informational
purposes only in limited circumstances. They are not binding on
future classification issues. Lastly, we note that record
"jackets" or "sleeves" are, in our opinion, provided for eo
nomine within heading 4819, HTSUSA, and not as printed matter.
The Explanatory Notes to Chapter 48, heading 4819, HTSUSA,
indicate that:
(A) Cartons, boxes cases bags and other packing containers
This group covers containers of various kinds and
sizes, generally used for the packing, transport, storage or sale
of merchandise, whether or not also having a decorative value. .
.
* * *
The article of this group may be printed, e.g., with
the name of the merchant, directions for use, illustrations. . .
(Emphasis added). Both compact disc boxes and record jackets
contain similar printed information. That record jackets may be
classified in subheading 4819, HTSUSA, indicates to us that the
same or similar information printed on compact disc boxes does
not exclude them from the chapter on the basis of Legal Note 11
to Chapter 48, HTSUSA. In other words, if one is not considered
to be "printed matter", then the other will not either. The
disposable nature of the compact disc boxes does not change our
opinion. The function and primary use of the product is the
same, and meets the criteria for inclusion in heading 4819,
HTSUSA.
Subheading 4819.20, HTSUSA
As an alternative classification, counsel suggests
subheading 4819.20, HTSUSA, which includes folding cartons, boxes
and cases, of non-corrugated paper or paperboard. Counsel
discusses the Explanatory Notes to heading 4819, HTSUSA, which
include the following:
The heading includes folding cartons, boxes and cases. These
are:
- cartons, boxes and cases in the flat in one piece, for
assembly by folding and slotting (e.g., cake boxes);
and
- containers assembled or intended to be assembled by
means of glue, staples, etc., on one side only, the construction
of the container itself providing the means of forming the other
sides, although, where appropriate, additional means of
fastening, such as adhesive tape or staples may be used to secure
the bottom or lid.
(Emphasis added). The gist of the discussion is the permissible
method(s) of assembly and where glue may be applied. Counsel
apparently contends that only one line of glue is attributable to
the construction of the actual "box", the remainder being applied
to the inner partition. Therefore, it is more akin to a box with
a glued insert, rather than glued on more than one side. In
support of this, counsel states the "a careful inspection of the
container reveals that only one side of the actual container,
along its length, is secured by means of adhesive." We believe
this to be too narrow a definition of "container." We do not
consider this item to be a 'box-with-adjuncts.' Instead we view
the partition as an integral part of the box's structure,
particularly in light of the folded, single sheet construction
described above. We do not believe that a detailed discussion of
what constitutes a "side" (i.e., left side, front side, inside
and/or outside) is necessary. The Explanatory Notes are of an
advisory nature, providing insight into the rationale behind the
construction of heading terms. The rationale here is clear:
"Folding boxes" are those secured in a single location during
manufacture and intended to be assembled into usable form by
folding (for example, folded corrugated cardboard boxes).
Further, exclusion from subheading 4819.20, HTSUSA, is
substantiated by considering the types of goods included in both
that subheading and subheading 4819.50, HTSUSA. The compact disc
boxes here are clearly more ejusdem generis to the record sleeves
referred to subheading 4819.50, HTSUSA. Even assuming, arguendo,
that both subheadings describe the goods in equally specific
terms, GRI 3(c) would require classification in the latter
subheading.
Within subheading 4819.50, HTSUSA, the provision for other
packing containers, other, includes these goods in subheading
4819.50.4060, HTSUSA.
HOLDING:
We hold that the goods at issue here, paperboard compact
disc boxes, manufactured in Canada and bearing printed
information merely incidental to the use of the articles as
containers for the transport, storage and sale of merchandise,
were properly classified under subheading 4819.50.4040, HTSUSA,
which provides for other packing containers of paperboard.
Further, we find that the protest should be denied.
A copy of this decision should be attached to the Form 19
Notice of Action to be sent to the protestant.
Sincerely,
John A. Durant
Director
Commercial Rulings Division