Request for Reconsideration of New York Ruling G86730; Classification of Optical Reading Mark (OMR) Forms

HQ 964983 November 19, 2001 CLA-2 RR:CR:TE 964983 BAS CATEGORY: Classification TARIFF NO.: 4823.51.0080 Mr. R. Wallace Murray Vice President, International Group Scantron Corporation 1361 Valencia Avenue Tustin, California 92780-6463 RE: Request for Reconsideration of New York Ruling G86730; Classification of Optical Reading Mark (OMR) Forms Dear Mr. Murray: This is in reply to your letter, dated April 10, 2001, on behalf of Scantron Corporation requesting reconsideration of New York Ruling G86730, dated January 31, 2001, (NY G86730) insofar as it concerned single sheet optical mark reading forms, also referred to as “single sheet printed forms.” You submitted several samples to aid us in our determination. FACTS: The merchandise under consideration is “single sheet printed forms” or “optical mark reading forms.” The forms are used in educational testing and marking. The samples at issue are single sheet printed forms, measuring 8 ½” x 11”, printed essentially in a foreign language (not specified), with spaces on which to record answers to questions that are not printed on the single sheets themselves. They might be described as “answer sheets.” The samples are marked, “SCANTRON FORM NO. F-8036-SL”, “SCANTRON FORM NO. F-13206-SL”, and “SCANTRON FORM NO. F-8038-SL.” In NY G86730, dated January 31, 2001, the single sheet printed forms were classified in subheading 4823.51.00, HTSUSA, which provides for “ Other paper, (cut to size or shape): of a kind used for writing, printing or other graphic purposes: Printed, embossed or perforated.” ISSUE: Are the submitted printed forms classifiable as printed books, brochures, leaflets, and similar printed matter in heading 4901, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as other articles of stationery, of paper or paperboard in heading 4820, HTSUSA, or as other paper in heading 4823, HTSUSA? LAW AND ANALYSIS: Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods 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 GRIs may then be applied. The three headings at issue in regard to the classification of the subject merchandise are heading 4901, HTSUSA, which provides for “Printed books, brochures, leaflets and similar printed matter, whether or not in single sheets,” heading 4820, HTSUSA, which provides for, inter alia, other articles of stationery, of paper or paperboard, or heading 4823, HTSUSA, which provides for, inter alia, other paper. HEADING 4901 When interpreting and implementing the HTSUSA, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The EN, while neither legally binding nor dispositive, provide a guiding commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUSA. Customs believes the ENs should always be consulted. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The General Notes to Chapter 49 state that the Chapter 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 General Notes go on to state that “on the other hand, besides the goods of heading 48.14 or 48.21, paper, paperboard, or cellulose wadding, or articles thereof, in which the printing is merely incidental to their primary use (e.g. printed wrapping paper and printed stationery) fall in Chapter 48.” The single sheet printed scantron forms at issue have no motifs, characters or pictorial representations. In addition, the printing on the single sheet optical mark reading forms is incidental to its primary use. The primary use of the forms is to collect answers in a machine readable format. This office has addressed the issue of printed matter consisting essentially of text versus printed matter in which the print is incidental to its primary use extensively in the interpretation of heading 4901, HTSUSA. Heading 4901, HTSUSA, provides for “Printed books, brochures, leaflets and similar printed matter, whether or not in single sheets.” The ENs to heading 4901, HTSUSA, state that the heading includes books and booklets consisting essentially of textual matter of any kind. In accordance with the ENs, this office has consistently restricted classification in heading 4901, HTSUSA, to those items that consist “essentially” of textual matter of any kind. See HQ 958959, November 12, 1996 (question booklet containing 1001 questions and answer choices properly classifiable in heading 4901, HTSUSA); HQ 955362, dated January 14, 1994 (noting that printed matter not constituting a literary text is excluded from heading 4901); HQ 955845, August 22, 1994; HQ 956731, dated September 26, 1994 (classifying the book component of a storybook pillow in heading 4901, HTSUSA); HQ 956135, dated August 4, 1994 (engagement book consisting essentially of pictures and blank spaces in which to write notations, is precluded from classification in heading 4901, HTSUSA); HQ 951887, dated October 26, 1992 (instruction manuals for using computer software programs classified in heading 4901, HTSUSA); HQ 085185, dated September 22, 1989 (essential character of color charts for paint lies in the color deposited on the item, not in the printed text and color charts are therefore excluded from classification in heading 4901, HTSUSA; HQ 088044, dated April 4, 1991 (children’s book properly classified in heading 4901, HTSUSA, because text forms the principal interest). In contrast to the aforementioned examples, the scantron sheets at issue are not essentially of textual matter. The sheets consist essentially of “bubbles” to be filled in by the test taker. The printing on the scantron sheets is merely incidental to its primary use which is to be used as an answer form. Thus the single sheet scantron forms are not properly classified in Chapter 49 and are more appropriately classified in Chapter 48. HEADING 4820 Having precluded classification of the optimal marking forms in heading 4901, HTSUSA, we must now determine whether the forms are appropriately classified in heading 4820, HTSUSA. Heading 4820, HTSUSA, provides for “Registers, account books, notebooks, order books, receipt books, letter pads, memorandum pads, diaries and similar articles, exercise books, blotting pads, binders (looseleaf or other), folders, file covers, manifold business forms, interleaved carbon sets and other articles of stationery, of paper or paperboard; albums for samples or for collections and book covers (including cover boards and book jackets) of paper or paperboard.” Legal Note 9 to Chapter 48 states that heading 4820 does not cover loose sheets or cards, cut to size, whether or not printed, embossed or perforated. The single sheet printed forms are “loose sheets” and would therefore be precluded from classification in heading 4820, HTSUSA. HEADING 4823 Having eliminated the possibility of classifying the single sheet printed forms in either heading 4901, HTSUSA or heading 4820, HTSUSA, consideration must now be given to the possibility of classification in heading 4823, HTSUSA. Heading 4823, HTSUSA, provides for “Other paper, paperboard, cellulose wadding and webs of cellulose fibers, cut to size or shape; other articles of paper, pulp paper, paperboard, cellulose wadding or webs of cellulose fibers.” The ENs to Heading 4823, HTSUSA, state that the heading includes paper or paperboard not covered by any of the previous headings of the Chapter in rectangular sheets of which no side exceeds 36 cm in the unfolded state. The scantron sheets are not covered by any of the previous headings in Chapter 48 and are also rectangular sheets of which no side exceeds 36 cm in the unfolded state. Accordingly, the single sheet printed scantron forms are properly classified in subheading 4823.51.0080, HTSUSA, which provides for “Other paper and paperboard, of a kind used for writing, printing or other graphic purposes: Printed, embossed or perforated, Other.” HOLDING: NY G85730, dated January 31, 2001, is AFFIRMED. The single sheet optical mark reading forms, measuring 8 ½” x 11”, with spaces on which to record answers are properly classified in subheading 4823.51.0080, HTSUSA which provides for “Other paper and paperboard, of a kind used for writing, printing or other graphic purposes: Printed, embossed or perforated: Other.” The general column one rate of duty is .9 percent ad valorem. There is no textile quota category applicable to this provision. Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, the consignee should contact the local Customs office prior to importing the merchandise to determine the current applicability of any import restraints or requirements. Sincerely, John Durant, Director Commercial Rulings Division