CLA-2 RR:CR:TE 963858 mbg
Mr. Christopher Perry
U.S. Customs Service
Area Port Director, Champlain
198 West Service Road
Champlain, NY 12919
RE: Request for Internal Advice No. 2000/08; lithographically reproduced photocards; heading 4911, HTSUSA
Dear Mr. Perry:
This is in response to an Internal Advice, dated March 3, 2000, submitted by Trendsetter Marketing International, regarding the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of lithographically reproduced photocards. Samples were submitted to this office for examination.
FACTS:
The subject merchandise consists of collectible “photocards,” manufactured for Trendsetter Marketing International, which features printed materials for some of today’s most popular entertainment attractions, including musical groups, professional wrestling, and movies. The subject merchandise measures approximately 4 inches by 6 inches and is printed through a lithographic process in Italy. The “Photocard Collection Series” is sold in packages of six collectible photocards per pack which are randomly placed into each pack. Each pack has a suggested retail value of $1.99.
Each photocard depicts the subject matter on one side and the name of the musical group, wrestling character or movie on the back. Other textual information on the back of the card includes copyright information, printer name, country of origin and card number. There is no textual information on the front of the photocards.
Customs notes that Trendsetter Marketing also filed a claim for treatment regarding the subject merchandise. On April 27, 2001, under a separate letter, Customs granted Trendsetter’s claim for treatment for the subject lithographic photocards under subheading 4911.91.4040, HTSUSA.
Trendsetter’s treatment claim was premised upon a prior Customs notice regarding lithographs. On August 16, 2000, Customs published a Proposed Notice in the Customs Bulletin, Vol. 34, No. 33, which advised interested parties of the revocation of a treatment previously accorded to lithographs, 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 was 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 4911.91.20, HTSUS (lithographs)), was subject to 100 percent ad valorem duties imposed on a list of products of certain member states of the European Union (“EU”) as a result of the EU’s failure to implement the recommendations and ruling of the World Trade Organization (“WTO”) Dispute Settlement Body concerning the EU’s regime for the importation, sale and distribution of bananas.
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 EU 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 EU products, including lithographs, and to monitor the EU’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 4911.91.20, 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. In the same regard, Trendsetter’s claim of treatment and subsequent approval by Customs on April 27, 2001, serves as the equitable remedy for the subject merchandise to which the 100 percent duties had been imposed. Therefore, the current ruling letter will only discuss the classification under the HTSUSA of the subject lithographs for importations subsequent to the delayed effective date set forth in the Customs Bulletin final notice of October 18, 2000, discussed above.
ISSUE:
Whether the “photocards” are more properly classified as pictures, designs and photographs in subheading 4911.91, HTSUSA, or as other printed matter in subheading 4911.99, HTSUSA?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (“GRIs”). GRI 1 provides that classification shall be determined according to the terms of the heading 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.
Heading 4911, HTSUSA, provides for "Other printed matter, including printed pictures and photographs." The EN to heading 4911 indicates that the heading covers all printed matter that is not more particularly covered by the preceding headings of the chapter. At the six-digit subheading level, 4911.91, HTSUSA, includes other printed matter, pictures, designs, and photographs, while 4911.99 covers other printed matter, other than pictures, designs, and photographs (such as characters, symbols, and letters).
The trading cards are not eo nomine provided for in the HTSUSA, however, in applying the rule of ejusdem generis to determine whether an item is embraced within a particular class, the courts have looked to the articles enumerated within that class to ascertain the characteristics they have in common. Kotake Co., Ltd. v. United States, 58 Cust. Ct. 196, C.D. 2934 (1967). When applying the Kotake principle to the subject photocards, Customs must consider the textual material printed on the cards as well as the photographic material which is lithographically printed.
The importer analogizes the photocards to other trading cards
such as baseball cards and submits that classification is proper as other printed matter in subheading 4911.99, HTSUSA. Regarding the classification of collectible trading cards such as sports figure cards and action figure cards, Customs has consistently classified such merchandise in subheading 4911.99.6000, HTSUSA as “Other printed matter.” See e.g., HQ 958039, dated March 3, 1996; HQ 957688, dated Oct. 11, 1995; NY E81120, dated May 4, 1999; HQ 953087, dated April 6, 1993; NY 860521, dated Feb. 25, 1991; and HQ 088084, dated Nov. 11, 1990.
However, the amount of textual material printed on the subject photocards varies greatly from that on a collectible sports card. Each photocard has a “collector” number, a logo, copyright information, country of origin markings, and in some instances a website address. There is no distinctive textual material such as the character’s name, affiliated group, and any sort of informative information about the actual person or group whose imagine is imposed on the photocard. An importer is required by law to include the copyright and country of origin information on the cards but beyond that very little information is actually provided to the “collector” who chooses this product based on a likeness to a favorite character.
The photocards are printed on a paper typical of photo developing and processing. Since each photo card has a photograph on the front with no identifying information, it would appear that any retail purchaser buys the subject product in order to have a picture of a favorite character. Customs views the photocards as distinctive from collectible sports cards and proper classification of the photocards must account for the lack of textual writing on the cards. As such, classification is proper as pictures, designs, and photographs in subheading 4911.91, HTSUSA.
HOLDING:
The photocards are classified in subheading 4911.91.2040, HTSUSA, as “other printed matter, including printed pictures and photographs: pictures, designs and photographs: Other: Litographs on paper or paperboard: Not over 0.51 mm in thickness: Other.” The photocards are dutiable at general column one duty rate of 0.4 cents per kg under the 2001 HTSUSA. However, in accordance with the USTR notice, the internal advice requester is entitled to obtain a refund of the 100 percent duties, if deposited, (less the amount due as a result of classification under subheading 4911.91.2040, HTSUS).
You are to mail this decision to the internal advice requester no later than 60 days from the date of this letter. On that date, 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.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings