CLA-2 CO:R:C:F 955453 ASM
Mr. Ned H. Marshak
Sharretts, Paley, Carter & Blauvelt, P.C.
67 Broad Street
New York , NY 10004
RE: Modification and Request for Reconsideration of NYRL 891598
concerning the tariff classification of two types of photographic
paper to be imported from Japan.
Dear Mr. Marshak:
This letter is in response to your request on behalf of your
client, Nissho Iwai American Corporation, for reconsideration of
New York Ruling Letter (NYRL) 891598, dated November 9, 1993,
regarding the classification of two types of photographic paper:
receiving paper PS-SG polyethylene coated, and receiving paper
PG-SG. Pursuant to section 625, Tariff Act of 1930 (19 U.S.C.
1625), as amended by section 623 of Title VI (Customs
Modernization) of the North American Free Trade Agreement
Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993)
(hereinafter section 625), notice of the proposed modification of
NYRL 891598 was published January 25, 1995, in the Customs
Bulletin, Volume 29, Number 4.
FACTS:
On November 9, 1993, NYRL 891598, classified these products
as follows: receiving paper PS-SG polyethylene coated, and
receiving paper PG-SG were classified under subheading
3703.20.3030, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA), dutiable at 3.7 percent ad valorem.
This office received your request for reconsideration of
NYRL 891598 on December 1, 1993, where you have asserted that
these products (receiving paper PS-SG and receiving paper PG-SG)
should both be classified as paper and paper board coated,
impregnated, or covered with plastics, in subheading 4811.31.40,
HTSUSA, dutiable at 2.6 percent ad valorem .
In your petition, you state that the photographic receiving
papers PS-SG and PG-SG are not "sensitized," and therefore do not
fall within the purview of subheading 3703, HTSUSA. You
reference the Explanatory Notes to the Harmonized Tariff Schedule
as expressly providing that heading 3703 does not encompass
"prepared but unsensitized paper, paperboard, or textiles, e.g.,
paper coated with albumin, gelatin, barium sulphate, zinc oxide,
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etc." In addition, you cite four New York Ruling Letters
(861051, 861052, 861053, 861312) and Headquarter Ruling Letter
(HRL), 085794, in support of the statement that heading 3703,
HTSUSA, only applies to "sensitized" paper.
ISSUE:
What is the proper classification under the HTSUSA for two
products, identified as receiving paper PS-SG polyethylene
coated, and receiving paper PG-SG?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is made in
accordance with the General Rules of Interpretation (GRI's). As
stated in GRI 1, the classification is determined first in
accordance with the terms of the headings which must be read in
conjunction with the relative section and chapter notes. If GRI
1 fails to classify the goods and if the heading and legal notes
do not otherwise require, the remaining GRI's are applied in
their appropriate order. The Explanatory Notes to the Harmonized
Commodity Description and Coding System (EN's), facilitate
classification under the HTSUSA by offering guidance in
understanding the scope of the headings and GRI's.
The products in question, receiving papers PS-SG
polyethylene coated and PG-SG are papers coated with a mordant
and alkali-releasing agent that have been sensitized for use only
with the donor paper. According to the product information sheet
for the "FUJI Instant Color Print System" (February 1993), the
"alkali releasing agent contained in the receiver sheet permeate
the donor paper and reacts with the alkali precursor to produce
an alkali." Then, through exposing the donor paper to light, a
thermal transfer process, and interfacing the donor and receiving
papers, the receiving paper retains the positive dye image from
the donor paper and is transformed into the final color print.
Based on the information contained in the product
information sheet, it is clear that the subject paper products
would meet the definition of "photographic" contained in the
Notes to Chapter 37, HTSUSA, which are legally binding in the
interpretation of the nomenclature heading terms. Specifically,
Note 2 to Chapter 37 defines "photographic" as follows:
2. In this chapter the word "photographic" relates to a
process which permits
the formation of visible images directly or indirectly
by the action of light
or other forms of radiation on sensitive surfaces.
Indeed, the first step in the processing function requires
that the donor paper be exposed to light before the subject
receiving paper can be finally transformed into the color print.
Thus, light has indirectly played a part in the process whereby
the sensitive surface of the receiving paper is capable, through
the direct application of heat, of producing a visible image.
In order to determine whether or not this paper is
"sensitized" within the meaning of Chapter 37, HTSUSA, we refer
to the EN's to Chapter 37, which provide guidance and represent
the official interpretation of the nomenclature at the
international level. The EN for - 3 -
subheading 3703, "photographic paper, paperboard and textiles,
sensitized, unexposed," contained at pp. 512-13, specifically
provides that this heading cover all sensitized, unexposed
photographic paper, flat or rolled, including:
(1) Paper and textiles for the production of positive
photographic prints. These may be used in amateur,
professional, X-ray, electro-cardiographic, recording,
photocopying, etc., work.
We note that the EN's for subheading 3703 specifically
exclude "prepared" paper, e.g., coated with "albumin, gelatin,
barium sulphate, zinc oxide, etc." With the exception of barium
sulfate, such coatings are not generally used in the photographic
process. According to The Dictionary of Paper (1980), "gelatin
is used as a high-purity alternative for glue in paper coating
and sizing" and zinc oxide is used as a filler to impart opacity
and color. Albumin is a "simple heat-coagulable water-soluble
protein" (Webster's New Collegiate Dictionary, 1979).
Based on our review of the ingredients listed for this
product, we find no evidence that the receiving papers in
question have been coated with albumin, barium sulphate, or zinc
oxide. Although we note that the coating for the receiving
papers does contain gelatin, it makes up less than one percent
(0.8 percent) of the weight of each sheet. Moreover, it is
undisputed that the subject receiving paper is intended for use
in the production of positive photographic prints in photocopying
work.
The four New York Ruling Letters (861051, 861052, 861053,
861312), can be distinguished from the present case because the
papers in the New York Rulings merely consisted of paper which
had been coated with polyethylene or plastic facings. At the
time of importation into the United States, none of these papers
had been chemically treated or sensitized with alkalis or other
chemicals which would immediately permit them to be used in the
production of photographic prints.
Further, with regard to HRL 085794, we do not believe that
the specific reference to the "microcapsules" coating found on
the donor film would necessarily limit the definition of
the"sensitized" developer paper which was also classified in the
ruling. In fact, HRL 085794 classified the developer paper in
subheading 3703.90.6000, HTSUSA, without specific reference as to
exactly what chemicals comprised the sensitization of the
developer paper. It is also important to note that the subject
receiving papers are strikingly similar to the developer papers
in HRL 085794, in that neither the developer paper nor the
subject receiving paper is directly exposed to light. In
addition both the developer paper and the subject receiving paper
are intended for the same purpose, i.e., coated with a chemical
application so that the sensitive surface of the paper may
receive a positive photographic image in the production of
photographic prints. Thus, we believe that HRL 085794 provides
additional support for classification of the subject product in
heading 3703, HTSUSA.
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HOLDING:
In NYRL 891598, both receiving paper PS-SG polyethylene
coated and receiving paper PG-SG were classified in subheading
3703.20.3030, HTSUSA, as "Photographic paper, paperboard and
textiles, sensitized, unexposed: Other, for color photography
(polychrome): Silver halide papers...For pictorial use
(continuous tone)" with a duty under the general column one rate
of 3.7 percent ad valorem.
According to the product information contained in this file,
we note that there is no silver halide contained in these
products. Thus, it is the decision of this office that the
receiving papers (PS-SG and PG-SG) are properly classified in
subheading 3703.20.6000, HTSUSA, which provides for "Photographic
paper, paperboard and textiles, sensitized, unexposed: Other,
for color photography (polychrome): Other" which is dutiable at
the general column one rate of 3.1 percent ad valorem.
Accordingly, NYRL 891598, dated November 9, 1993, is hereby
modified so that it is consistent with this ruling. In
accordance with section 625 this ruling will become effective 60
days after its publication in the Customs Bulletin. Publication
of rulings or decisions pursuant to section 625 does not
constitute a change of practice or position in accordance with
section 177.10(c)(1), Customs Regulations (19 CFR 177.10(c)(1)).
Sincerely,
John Durant, Director
Commercial Rulings Division