CLA-2 RR:CR:TE 961958 SS
Port Director
United States Customs Service
P.O. Box 17423
Washington, D.C. 20041
Re: Protest No. 5401-98-100012; Classification of Certificates of Authenticity; Other Printed Matter Printed by Lithographic Process; Subheading 4911.99.6000, HTSUSA
Dear Sir:
This is in response to the Application for Further Review of Protest Number 5401-98-100012, filed by Wall Shipping Co., Inc., on behalf of the importer, De La Rue Security Print (“Protestant”), contesting the classification of “Certificates of Authenticity” under subheading 4802.53.1500 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which you forwarded to our office for review on June 12, 1998. A sample “Certificate of Authenticity” was forwarded with the Application for Further Review and sent to a Customs Laboratory for testing.
FACTS:
The article under protest is a square piece of printed paper measuring 4-3/4 inches by 4-3/4 inches. The words “Certificate of Authenticity” are printed in large, bold-faced type at the top of the piece of paper. The paper is identified by the importer as a “Certificate of Authenticity” for certain computer software. According to the Customs Laboratory, the certificate was printed by a lithographic process. The certificate purports to assure that software is legally licensed and contains several security features to verify genuiness. The green border and logo has a raised, textured feel. The interwoven holographic thread can be verified as one long strip when held in front of a bright light. We note that the certificate contains a watermark and detailed intaglio designs. The specifications for the certificates provided by the importer indicate that a box on the certificate is reserved for a bar-code and that certificates will be sequentially numbered.
Protestant entered six shipments of the “Certificates of Authenticity” between December 9, 1997, and January 22, 1998, under subheading 4823.70.0000, HTSUSA, the provision for molded or pressed paper, with a free rate of duty. However, the goods were invoiced as “printed paper.” Upon review of a specification sheet provided by the importer, the Port reclassified the shipments under subheading 4802.53.1500, HTSUSA, the provision for cover paper weighing more than 150 g/m², with a duty rate of 1.4 percent. By the time the broker determined that the goods were actually “Certificates of Authenticity” and submitted a sample to Customs, the six entries at issue had already been liquidated. Based on the sample, Customs advised the broker that the classification of the “Certificates of Authenticity” was under subheading 4802.52.9000, HTSUSA, the provision for other paper weighing 40 g/m² or more but not more than 150 g/m², with a free rate of duty. The broker filed the original protest to reclassify the six liquidated entries under subheading 4802.52.9000, HTSUSA. However, Customs subsequently determined that the proper classification was under subheading 4911.99.8000, HTSUSA, the provision for other printed matter with a duty rate of 2.9 percent. The broker filed an amended protest claiming classification under heading 4907, HTSUSA, which provides for, inter alia, stock, share or bond certificates and similar documents of title.
ISSUE:
Whether the “Certificates of Authenticity” are classifiable in heading 4907, HTSUSA, as similar documents of title or in heading 4911, HTSUSA, as other printed matter?
LAW AND ANALYSIS:
Classification of goods under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (“GRIs”). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule and any relative 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 may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI.
The EN to chapter 49 state that the chapter, with few exceptions, 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. The “Certificates of Authenticity” fit this description. Accordingly, the two headings under consideration are heading 4907, HTSUSA, which provides for, inter alia, stock, share or bond certificates and similar documents of title; and heading 4911, HTSUSA, which provides for, inter alia, other printed matter.
Heading 4907, HTSUSA, covers, among other things, “stock, share or bond certificates and similar documents of title.” Explanatory Note (F) to heading 4907, HTSUSA, states that these are formal documents issued by public or private bodies conferring ownership of, or entitlement to, certain financial interests, goods or benefits named therein. In addition to the named exemplars, the EN indicates that the heading also covers letters of credit, bills of exchange, travellers’ cheques, bills of lading, title deeds and dividend coupons. The EN also state that documents classified under this portion of heading 4907, HTSUSA, usually require completion and validation. We find that the “Certificates of Authenticity” do not meet the terms of the heading. Although the certificates are issued by a private computer software company, the document itself does not confer ownership of, or entitlement to any financial interests, goods or benefits. The document merely certifies authenticity. The “Certificates of Authenticity” do not require completion or validation and are received with the computer software in completed or validated form. The “Certificates of Authenticity” are not of the same class or kind as the enumerated exemplars in the ENs.
Furthermore, the EN to heading 4907, HTSUSA, state that stock and similar certificates are generally printed on special paper bearing special watermarkings or other marks and are usually serially numbered. The “Certificates of Authenticity” are printed on special paper bearing special markings and are serially number. However, the EN also reveal that lottery tickets printed on special security paper and serially numbered are excluded from the heading and are classified in heading 4911, HTSUSA. We find that the “Certificates of Authenticity” are similar to the lottery tickets in that they are printed on special security paper and serially numbered, yet do not rise to the level of being a document of title. Accordingly, the “Certificates of Authenticity” are precluded from classification under heading 4907, HTSUSA.
Heading 4911, HTSUSA, is the basket provision for printed materials in chapter 49, HTSUSA. The EN to heading 4911, HTSUSA, indicate that the heading covers all printed matter of the chapter not more particularly covered by any of the preceding headings of the chapter. The EN further explain that certain printed articles that may be intended for completion in typescript at the time of use remain in this heading provided they are essentially printed matter. Thus, printed forms, identity documents and cards and other articles printed with messages, notices, etc., requiring only the insertion of particulars (e.g., dates and names) are classified in this heading. We find that the “Certificates of Authenticity” are similar to such pre-printed forms and identity documents. The “Certificate of Authenticity” serves a similar function as an identification card; after relevant personal information, such as a bar code, is inserted into the pre-printed form, the certificate verifies the identity of the computer software just as an identification card verifies the identify of a person. Accordingly, we find that the “Certificates of Authenticity” are classified under heading 4911, HTSUSA.
However, the assessed classification, subheading 4911.99.8000, HTSUSA, appears to be incorrect at the subheading level. Subheading 4911.99.8000, HTSUSA, is the residual provision that provides for “other” printed matter. Subheading 4911.99.6000, HTSUSA, specifically provides for printed matter that is printed in whole or in part by a lithographic process. The Customs laboratory has verified that the sample certificate was printed with a lithographic process. Therefore, we find that the “Certificates of Authority” are more properly classified under subheading 4911.99.6000, HTSUSA.
The only relevant precedent we could locate was HQ 951887, dated October 26, 1992, which involved a “Right to Copy” certificate. Customs stated that the certificate was a printed document that was a “right to copy” license allowing the buyer to make and install additional copies of the purchased software program on additional systems. The certificate had a sale price of $10,000.00 and could be purchased separate from the software. Customs classified the certificate as a similar document of title under heading 4907, HTSUSA. Although the ruling does not set forth the reasoning for such classification, the fact that the certificate was characterized as a “right to copy” license, leads us to the conclusion that Customs relied heavily on the fact that the document itself conferred an entitlement to certain benefits. The subject certificates can be distinguished in that they confer no entitlement to any benefit. The certificate merely serves as protection to the buyer that he is purchasing authentic goods.
HOLDING:
The “Certificates of Authenticity” are classified in subheading 4911.99.6000, HTSUSA, the provision for “Other printed matter, including printed pictures and photographs: Other: Other: Other: Printed on paper in whole or in part by a lithographic process. The general column one duty rate was 0.3 percent ad valorem in 1997 and 0.2 percent ad valorem in 1998.
The protest should be DENIED, except to the extent reclassification of the merchandise as indicated above results in partial allowance. 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