CLA-2 RR:CR:GC 963093 PH
Harold M. Grunfeld, Esq.
Brett Ian Harris, Esq.
Grunfeld, Desiderio, Lebowitz & Silverman
245 Park Avenue, 33rd Floor
New York, NY 10167-3397
RE: Polyethylene terephthalate film for color thermal transfer printers
Dear Messrs. Grunfeld and Harris:
This is in reference to your request on behalf of DNP America Inc., to the Director, Customs National Commodity Specialist Division, New York, N.Y., dated September 13, 1996, for a ruling as to the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of certain polyethylene terephthalate film to be used for color thermal transfer printers. Your letter was referred to this office for reply. This ruling takes into consideration your supplemental submission of December 23, 1996. We regret the delay.
FACTS:
The merchandise is designed for use in color thermal transfer printers. It consists of thin (4.5µ and 6µ) polyethylene terephthalate (PET) film imported in rolls approximately 50 to 280 millimeters wide and approximately 65 to 1,000 feet long. The film is coated with dye pigments throughout the roll in a repeating sequence of three to seven different color panels. The dye is transferred from the film onto paper with the application of heat by the printer head; dye cannot be transferred by mechanical impact. The dye pigments are heat-sensitive so that the amount of dye transferred from the film may be varied, permitting the reproduction of different gradations of color. A printer using the merchandise electronically advances and positions each color panel of the film to enable the sequential overprinting of the various colors.
In addition to being imported in rolls, the merchandise may be imported in cartridges. The cartridges consist of molded plastics containing a roll of the film with spools to advance and take up the film.
ISSUE:
Whether the PET film, coated with dye pigment and to be used in color thermal transfer printers, is classifiable as photographic film in rolls, sensitized, unexposed, of any material other than paper, paperboard or textiles, in heading 3702, HTSUS, other film of plastics, noncellular and not reinforced, laminated, supported or similarly combined with other materials, in heading 3920, HTSUS, or other film of plastics, in heading 3921, HTSUS.
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6, taken in order. Under GRI 2(b), any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances, any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance, and the classification of goods consisting of more than one material or substance shall be according to the principles of rule 3. GRI 3(a) provides that goods which are prima facie classifiable under two or more headings shall be classified in the heading which provides the most specific description; however when the headings each refer to part only of the materials or substances contained in mixed or composite goods, or to part only of the items in a set put up for retail sale, the headings are to be regarded as equally specific in relation to those goods. Pursuant to GRI 3(b), goods which are prima facie classifiable under two or more headings, and which are mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, shall be classified as if they consisted of the material or component which gives them their essential character.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the ENs should always be consulted. See T.D. 89 80, published in the Federal Register August 23, 1989 (54 F.R. 35127, 35128).
The HTSUS headings under consideration are as follows:
3702 Photographic film in rolls, sensitized, unexposed, of any material other than paper, paperboard or textiles; instant print film in rolls, sensitized, unexposed
3920 Other plates, sheets, film, foil and strip, of plastics, noncellular and not reinforced, laminated, supported or similarly combined with other materials
3921 Other plates, sheets, film, foil and strip, of plastics
Note 2, Chapter 37, HTSUS, provides:
In this chapter, the word "photographic" relates to the process by which visible images are formed, directly or indirectly, by the action of light or other forms of radiation on photosensitive surfaces.
Headings 3920 and 3921, are so-called "basket" provisions (see, e.g., Item Co. v. United States, 98 F.3d 1294, 1296 (Fed. Cir. (T) 1996), in which the Court stated "Both [headings] 6304 and 6307 are general headings or basket provisions--the word ‘other’ makes this clear"). Insofar as classification in a basket provision is concerned, the Courts have stated "[c]lassification of imported merchandise in a basket provision is appropriate only when there is no tariff category that covers the merchandise more specifically" (Apex Universal, Inc. v. United States, CIT Slip Op. 98-69 (1998); see also E.M. Chemicals v. United States, 20 CIT 382, 385, 923 F. Supp. 202 (1996), "... the Court agrees ... that ... a ‘basket provision’ ... cannot be applied until other provisions of the HTSUS are examined to determine if the subject merchandise is more appropriately classified elsewhere"). Accordingly, we must first examine heading 3702, HTSUS, to determine if the merchandise may be classified in that provision and, if so, classification in heading 3920 or 3921, HTSUS, is precluded.
In QMS, Inc. v. United States, 19 CIT 551 (1995), the Court classified similar merchandise (color ink sheet rolls ("ISRs") consisting of a thin plastic film to which is applied paraffin wax pigments and which is used in color thermal transfer printers in a process similar to that described in the FACTS portion of this ruling) as photographic film of heading 3702, HTSUS. Citing the definition of "photographic" in Note 2, Chapter 37, HTSUS (supra), and scientific definitions of the term, the Court stated:
... this Court finds the term "photographic" to be sufficiently broad so as to indicate a legislative intent to include within the tariff provisions of Chapter 37 more processes than what may be considered conventional photography or photography as that term may be commonly understood. This Court also finds ... the thermal transfer process utilized in this case to be a "photographic" process within the statute. ... The thermal transfer process permits the formation of visible images by the action of heat radiation on a heat-sensitive surface treated with wax pigments. ... ISRs are the "photographic film" used in that process, as they are in rolls, sensitized to heat radiation, unexposed to heat radiation, and made of a material other than paper, paperboard or textiles. [19 CIT at 562-563]
Customs has followed QMS, supra, in the classification of merchandise similar to that under consideration. In Headquarters Ruling (HQ) 960328 dated February 4, 1998, we ruled certain dye diffusion thermal transfer ribbons and packs (or cartridges) to be classified in 3702, HTSUS. The merchandise in HQ 960328 is described as rolls of PET film coated with heat-sensitive dye pigment in a repeating sequence of different color panels to be used for color thermal printers in a process similar to that described in the FACTS portion of this ruling. In HQ 960328, we noted that the merchandise had previously been classified as typewriter or similar ribbons in heading 9612, HTSUS, but that, "[b]y virtue of the decision in QMS, [supra] [those rulings] have been revoked by operation of law." Similarly, in New York Rulings (NYs) A81738 dated April 22, 1996, and D80198 dated August 6, 1998, Customs held PET film with translucent sublimation dyes applied in a series of color configurations to be used in digital video printers and thermally sensitive PET film coated with four colors of ink, respectively, to be classified in heading 3702, HTSUS.
Based on the foregoing, we conclude that the merchandise is classifiable as photographic film in rolls in heading 3702, HTSUS. This is so whether the merchandise is imported as rolls, or as cartridges containing rolls (in regard to the latter, see HQ 960328; see also GRI 3(b), General EN Rule 3(b) (VIII), and, e.g., Better Home Plastics Corp. v. United States, 916 F. Supp. 1265 (CIT 1996), affirmed 119 F.3d 969 (Fed. Cir. 1997)). The rolls of film are approximately 50 to 280 millimeters wide. If the film is of a width not exceeding 105 millimeters, the merchandise is classified in subheading 3702.39.00, HTSUS; if of a width exceeding 105 millimeters but not exceeding 610 millimeters, it is classified in subheading 3702.44.00, HTSUS.
HOLDING:
The PET film, coated with dye pigment and to be used in color thermal transfer printers, approximately 50 to 280 millimeters wide, imported as either rolls or cartridges containing rolls, is classified as other film in rolls, sensitized, unexposed, of a width not exceeding 105 millimeters, in subheading 3702.39.00, HTSUS, or of a width exceeding 105 millimeters but not exceeding 610 millimeters, in subheading 3702.44.00, HTSUS.
Sincerely,
John Durant, Director
Commercial Rulings Division