CLA-2:RR:CR:TE 963609 RH
TARIFF NOS.: 4810.32.1020; 4810.39.1200; 4810.39.1400
Mr. James J. Kelly
Attorney in Fact
barthco trade consultants, inc.
7575 Holstein Avenue
Philadelphia, PA 19153
RE: Request for classification of printed sheet for the production of cartons
and boxes
Dear Mr. Kelly:
This is in reply to your letter of May 27, 1999, on behalf of Beamglow, requesting a ruling on the tariff classification of printed sheets. You provided a sample to aid us in our determination.
FACTS:
The merchandise at issue is a sheet of printed paperboard (342.4 gsm). Following importation, the paperboard will be cut and made into containers used to package items for retail sale. We note, however, that the writing on the sheet reads, in part, “Sample. Not for sale.” It appears that the containers will be used as a promotional item to contain a gift given with the purchase of Elizabeth Arden products.
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Customs laboratory examined a sample of the merchandise at issue and made the following findings:
The sample, a sheet of white paperboard, inorganically coated (ash of 7.2 percent) on one side, and printed on both sides, is composed of chemical bleached Kraft pulp fibers. Other test results are as follows:
Thickness: 0.440 MM
Basic weight: 342.4 grams per square meter
ISSUE:
What is the correct classification of the subject merchandise?
LAW AND ANALYSIS:
Classification of goods under the Harmonized Tariff Schedule of the United States (HTSUS) is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI will be applied.
Additionally, in interpreting the headings and subheadings, Customs looks to the Harmonized Commodity Description and Coding System Explanatory Notes (EN), which are not legally binding, but are recognized as the official interpretation of the Harmonized System at the international level. It is Customs practice to follow, whenever possible, the terms of the EN when interpreting the HTSUS. T.D. 89-80.
Heading 4810, HTSUS, encompasses:
Paper and paperboard, coated on one or both sides with kaolin (China clay) or other inorganic substances, with or without a binder, and with no other coating, whether or not surface-colored, surface-decorated or printed, in rolls or rectangular (including square) sheets, of any size.
The Beamglow paperboard sheet falls squarely within the terms of heading 4810, i.e., it is coated with ash, printed and imported in sheets.
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However, since Customs has classified unassembled cartons in heading 4819, HTSUS, that provision also merits consideration. See NY 882641, dated March 15, 1993; NY B80969, dated January 14, 1997; NY 852997, dated June 7, 1990; NY 874961, dated June 5, 1992; NY 895794, dated March 28, 1994; and NY 867887, dated October 21, 1991.
Heading 4819 provides for:
Cartons, boxes, cases, bags and other packing containers, of paper, paperboard, cellulose wadding or webs of cellulose fibers; box files, letter trays and similar articles, of paper or paperboard of a kind used in offices, shops or the like.
In our opinion, the Beamglow sheets do not fall within the scope of heading 4819. The EN to heading 4819, both the current version and those in effect in 1991, provide, in part, that the heading includes cartons, boxes and cases in the flat in one piece, for assembly by folding and slotting (e.g., cake boxes) Emphasis supplied.
In light of the guidance from the EN to heading 4819, we do not agree that the heading is intended to cover merchandise imported in rolls or sheets. However, even if boxes, cartons, etc. of heading 4819 were importable in bulk or roll form, the printed paperboard is not so far advanced that its character or identity as a container is evident.
GRI 2(a) reads:
Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also be taken to include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), presented unassembled or disassembled.
The term “essential character” is not defined in the HTSUS. However, the EN’s provide guidance on the meaning of the term under GRI 3(b), stating, in part that:
It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods. See, EN’s to GRI 3(b), VIII.
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In the past, Customs has applied factors such as “irrevocably committed to use” and “identity of an article” to determine essential character under GRI 2(a). These principles evolved under the Tariff Schedule of the United States (TSUS). In Coraggio Design, Inc. v. United States, 12 CIT 143 (1988), the Court of International Trade held that imported rolls or bolts of drapery fabric which had a "continental hem" that dedicated its use solely as drapery and made commercially unsuitable for other uses was, nevertheless, classified as fabric and not an article because the hem did not fix the identity of the drapery with certainty.
The principal that the identity of an article must be fixed with certainty was discussed earlier in The Harding Co. v. United States, 23 CCPA 250, TD 48109 (1936). In that case, brake lining material was imported in 100-foot rolls. It was used for brake lining for automobiles and was not commercially suitable for other uses. After it was fitted and riveted to a brake shoe it was cut off at one end. The brake lining material was not marked to indicate where it was to be cut for the reason that, even though used as brake linings for automobiles, it was used in various lengths. The court held that the imported merchandise was material for making automobile brake linings and not parts of automobiles.
Moreover, in Bendix Mouldings, Inc. v. United States, 73 Cust. Ct. 201, 388 F. Supp. 1193 (1974), the court stated that "no matter how close the importation is to the finished article or how dedicated it is to a single use, it remains a material until the identity of actual articles can be seen emerging with certainty from the undifferentiated material." In Bendix, uncut wood moldings dedicated to use as picture frames but not dedicated to the making of any particular frame were not classifiable as unfinished frames but only as the material from which frames were made. See, American Import v. United States, 26 CCPA 72 (1938) (the mere fact that 60 foot lengths of silk fishing-leader gut was exclusively used for fishing leaders did not take it out of material classification).
In this case, the paperboard does not evolve into single cartons until it has been cut, creased, folded and formed to shape. All of these processes occur after importation. Conversely, we note headquarters decision (HQ 962603, dated
May 14, 2002) in which we held that greeting card sheets did have the essential character of greeting cards under heading 4909, HTSUS. In that case, the greeting card sheets had “tick” marks similar to lines of demarcation, which indicated where each card would to be cut. Moreover, unlike Beamglow paperboard in this case, the drapery fabric imported in rolls in Coraggio, the uncut wood picture frames in Bendix, and the brake lining material in Harding, each card on the greeting card sheet was identified with certainty as an independent article and the identity of the individual cards, which were flat with the shape clearly formed, could be seen emerging with certainty before they
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were cut into individual cards. In the instant case, the paperboard sheet has some lines of demarcation but the outline, shape and size of each individual container on the sheet is not evident. Accordingly, the paperboard sheet does not constitute unfinished cartons.
Based on the foregoing reasons, we find that the printed paperboard material imported in sheets is fully described by the heading text 4810 and is classifiable there by GRI 1. The information provided by you is not sufficient to classify the merchandise at the subheading level. Therefore, in the HOLDING we are providing you with three alternate classifications (4810.32.1020; 4810.39.1200; 4810.39.1400) that will be applicable depending on the specific characteristics of your merchandise.
HOLDING:
The Beamglow paperboard is classifiable under one of the following provisions:
Paper and paperboard, coated on one or both sides with kaolin
(China clay) or other inorganic substances, with or without a binder,
and with no other coating, whether or not surface-decorated or
printed, in rolls or rectangular (including square) sheets, of any size: Kraft paper and paperboard, other than that of a kind used for writing, printing or other graphic purposes:
Bleached uniformly throughout the mass and of which more
that 95 percent by weight of the total fiber content consists of
wood fibers obtained by a chemical process and weighting
more than 150 g/m2:
In strips or rolls of a width exceeding 15 cm or in
rectangular (including square) sheets with one side
exceeding 36 cm and the other side exceeding 15 cm
in the unfolded state:
4810.32.1020 Folding carton stock
Other:
In strips or rolls of a width exceeding 15 cm or in
rectangular (including square) sheets with one side
exceeding 36 cm and the other side exceeding 15 cm
in the unfolded state:
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Whether or not impregnated, but not otherwise
treated
4810.39.1400 Other
Merchandise classifiable under subheadings 4810.32.1020 and 4810.39.1200, HTSUS, is duty free. Merchandise classifiable under subheading 4810.39.1400 is dutiable at the general column one rate at 0.4 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division