Request for Reconsideration of NY N307572; Classification of children’s book

HQ H309420 September 15, 2020 OT: RR: CTF: CPM: H309420 AAK/CKG CATEGORY: Classification TARIFF NO.: 4901.99.0070 Lionel Soussan Vice President of Production Phidal Publishing, Inc. 5740 Ferrier, Montreal, Quebec H4P 1M7 Canada Re: Request for Reconsideration of NY N307572; Classification of children’s book Dear Mr. Soussan: This is in response to your letter, dated February 25, 2020, in which you request reconsideration of part of New York Ruling Letter (NY) N307572 (“reconsideration request”). NY N307572, issued to you on December 5, 2019 by U.S. Customs and Border Protection (CBP), involved classification of, inter alia, a children’s book entitled Finding Nemo under the Harmonized Tariff Schedule of the United States (HTSUS). We regret the delay in responding to your reconsideration request. No sample was provided with the request. Having reviewed NY N307572 and determined that it is correct, we affirm that ruling for the reasons set forth below. NY N307572 described the Finding Nemo book as follows: Item one consists of a “Finding Nemo” story and picture book (hardbound) that tells the story of Nemo and his dad, Marlin, and their adventures in the ocean . . .. Your reconsideration request further describes that the Finding Nemo book is intended for children and designed to facilitate early reading experiences for the parent and child. Your request adds that the Finding Nemo book is based on the Disney/Pixar film of the same name, which falls under the “kids and family” genre. You also state in your request that the Finding Nemo book is marketed for children ages 3 and up. In NY N307572, CBP classified the Finding Nemo book in heading 4901, HTSUS, which provides, inter alia, for “Printed books.” CBP specifically classified the book in heading 4901, HTSUS (subheading 4901.99.0070), which provides for “Printed books . . .: Other: Other: Other: Other: Hardbound books.” In your reconsideration request, you assert that this classification is incorrect, and that the Finding Nemo book is correctly classified in heading 4903, HTSUS, which provides for “Children’s picture, drawing or coloring books.” Merchandise is classifiable under the HTSUS in accordance with 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. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings or notes do not require otherwise, the remaining GRIs 2 through 6 may be applied. Further, the Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the HTSUS. While not legally binding or dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989). Heading 4903, HTSUS provides for “Children’s picture, drawing or coloring books.” As cited in NY N307572, Note 6 to Chapter 49 of the HTSUS defines “children’s picture books” under heading 4903as “books for children in which the pictures form the principal interest and the text is subsidiary.” EN 49.03 provides elaboration: This heading is restricted to those picture books clearly compiled for the interest or amusement of children or for guidance in their first steps of primary education, provided the pictures form the principal interest and are not subsidiary to the text (see Note 6 to this Chapter). This category includes, for example, pictorial alphabet books and books of the kind in which the sense of stories is conveyed by a series of episodal pictures accompanied by captions or summary narratives related to the individual pictures. It also includes children’s workbooks consisting essentially of pictures with complementary texts, for writing or other exercises. It does not include books, even profusely illustrated, written in the form of continuous narratives with illustrations of selected episodes. These fall in heading 49.01. Taken together, then, a book is classifiable as a children’s picture book under heading 4903, HTSUS if: (1) it is for children; (2) the pictures form the book’s principal interest in that the pictures convey the sense of story; and (3) the text is subsidiary in that the text merely accompanies the pictures as a caption or summary narrative and does not amount to a continuous narrative. As NY N307572 held, the Finding Nemo book is not classifiable as a children’s picture book under heading 4903, HTSUS. While the book is undoubtedly for children, the text on the pages (as provided with your reconsideration request) forms the book’s continuous narrative, and the pictures do not convey a sense of the story but merely show its characters and settings. Specifically, on pages 1 and 2, the text tells how Nemo is ready to start school and his father, Marlin, worries that Nemo is a weak swimmer; the picture just illustrates Nemo and Marlin. On pages 3 and 4, the text describes how Nemo is scooped up by a scuba driver on his field trip because he couldn’t swim away; the picture simply shows Nemo and his friends. The text on pages 5 and 6 explains that Marlin must swim across the ocean to save Nemo, and that he meets Dory (along the way); the picture only displays Marlin and Dory. On pages 7 and 8, the text introduces friendly sharks Bruce and his friends who want to help Marlin and Dory; the picture just illustrates Bruce and his friends. On pages 9 and 10, the text tells how Marlin (and Dory) joins sea turtles Crush and his son Squirt ride the East Australian Current; the picture simply shows Marlin and Dory on Crush’s back, Squirt, and other sea turtles in the background. Lastly, the text on pages 11 and 12 reveals that Nemo and Marlin reunite, and that the ocean isn’t as scary as Marlin thought; the picture only displays Marlin and Nemo facing each other. Accordingly, the pictures in the Finding Nemo book do not form its principal interest and the text is not subsidiary. The Finding Nemo book is not classifiable as a children’s picture book under heading 4903, HTSUS, therefore, but is instead classifiable as a printed book under heading 4901, HTSUS. In your reconsideration request, you present five arguments why the Finding Nemo book ought to be classified as a children’s picture book in heading 4903, HTSUS, each of which will be addressed in turn. First, you argue that the Finding Nemo book should be classified under heading 4903, HTSUS, because it meets an alternative definition of “children’s picture books” than the one provided in Note 6 to Chapter 49 and EN 49.03. Citing various library websites, you define a children’s picture book as either featuring a combination of text and illustration or produced for the information or entertainment of children. Utilizing dictionaries and other sources to clarify the meaning of provisions in the HTSUS is generally acceptable. But, that is only true where the Section Notes, Chapter Notes, or ENs do not otherwise explain the provision at issue. Here, the meaning of “children’s picture books” under heading 4903, HTSUS is well defined by Note 6 to Chapter 49 and EN 49.03. The alternative definitions you cite are thus irrelevant to the application of heading 4903, HTSUS. Second, you argue that the Finding Nemo book is classifiable under heading 4903, HTSUS, because, without the pictures, the children would not recognize the scene on the “playmat” or the toys that are included for sale with the book. Thus, you contend, the pictures do form the book’s principal interest. The pictures in the Finding Nemo book may well enhance the utility of other merchandise sold with the book. As explained above, however, it is only the pictures’ role in conveying the sense of story that determines whether the Finding Nemo book is classifiable under heading 4903.00.0000, HTSUS. Their relation to anything beyond the story is immaterial. Third, you argue that the Finding Nemo book should be classified in heading 4903, HTSUS, because the story is not fully understandable without the pictures, and hence they form the principal interest. For example, you cite the text on page 1, describing how Nemo is ready for school and Marlin’s concern over his weak swimming, and you observe that without the illustration of Nemo and Marlin on page 2, the reader would not know that they are clownfish and that Nemo’s school is in the ocean. The text lacking some of a story’s details is not a factor in classifying a book under heading 4903, HTSUS. As previously explained, rather, so long as the text forms a continuous narrative, the book is not classifiable in heading 4903, HTSUS, which is the case with the Finding Nemo book. Fourth, you argue that the Finding Nemo book is classifiable under heading 4903, HTSUS, because, for the young, preliterate children to whom the book will be read, the book’s pictures form the principal interest. But, what a preliterate child, or any other reader for that matter, subjectively considers of principal interest is of no consequence. As EN 49.03 makes clear, whether a book’s pictures are of principal interest depends on whether they objectively convey the story, which they do not in the Finding Nemo book. Fifth, you argue that the Finding Nemo book is classifiable under heading 4903, HTSUS, because it is similar to a children’s picture book, entitled I’m a New Big Brother, which we classified in NY N147289, dated February 24, 2011,under heading 4903, HTSUS. In NY N147289, we described the I’m a New Big Brother book as follows: The children’s book, I’m a New Big Brother, is a twenty-eight page, hardbound book printed with captions and accompanied with illustrations. The children’s book measures approximately 7 inches wide x ¼ inch deep x 8 inches high. The book depicts the arrival of a new baby in the house and the adjustment of a big brother who does not know what to expect. The book shares with its readers how to include older siblings in the concept of a growing family. It includes a “Note to Parents” that provides ideas to make special moments that help the big brother feel important. Moreover, you provided a picture of four pages from the I’m a New Big Brother book with your reconsideration request. The first page illustrates the parents holding the new baby and the big brother peeking in the room. The text over the picture states, “Mom and Dad say things will be a little different now.” The second page displays the big brother building with toys and the baby observing him from a baby chair. The text above the picture states, “I want to play with you, but for now you just watch me and smile.” The top of the third page reads, “I like when Mom and Dad let me help. I am very careful with you.” The page then has a picture of the big brother holding the baby on a chair, with the accompanying text, “I hold you gently.” The next picture on the page is of the big brother reading a book to the baby, with the adjacent text, “I read to you.” Toward the top of the fourth page is a picture of the big brother pushing the baby in the stroller, accompanied by the text, “I push you in the stroller.” And the next picture on the page illustrates the big brother scrubbing the baby’s hair in a bath, with the adjacent text, “I help wash you in the bath.” After comparing the pages provided to us from the I’m a New Big Brother book and the Finding Nemo book, we believe the two books are distinguishable and warrant different classifications under the HTSUS. Unlike the Finding Nemo book, the pictures in the I’m a New Big Brother book convey the sense of story, and the text accompanies the pictures in captions or summary narratives and is not written as a continuous narrative. Specifically, the picture on the first page commences the story of the parents with a new baby and a big brother; the text just reveals the big brother remembering his parents telling him how the new baby’s arrival would slightly change things. Similarly, the picture on the second page sets the scene of the big brother building with his toys and the baby observing him; the text merely notes how the big brother would like to play with the new baby in the future. The same is true of the third and fourth pages, as their text simply verbalizes the story as told by the pictures of the big brother enjoying holding the baby, reading to the baby, pushing the baby in a stroller, and helping bathe the baby. As a result, the I’m a New Big Brother book was properly classifiable under heading 4903, HTSUS, unlike the Finding Nemo book. For all the aforementioned reasons, we hereby affirm NY N307572. Accordingly, the subject Finding Nemo book is classifiable in heading 4901, HTSUS, as a printed book, and specifically in subheading 4901.99.0070, HTSUS, as a “Printed book . . ..: Other: Other: Other: Other: Hardbound books.” The 2020 column one, general rate of duty is Free. Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 4901.99.0070, HTSUS, unless specifically excluded, are subject to an additional 25 percent ad valorem rate of duty.  At the time of importation, you must report the Chapter 99 subheading, i.e., 9903.88.03, in addition to subheading 4901.99.0070 HTSUS, listed above.  The HTSUS is subject to periodic amendment so you should exercise reasonable care in monitoring the status of goods covered by the Note cited above and the applicable Chapter 99 subheading.  For background information regarding the trade remedy initiated pursuant to Section 301 of the Trade Act of 1974, you may refer to the relevant parts of the USTR and CBP websites, which are available at https://ustr.gov/issue-areas/enforcement/section-301-investigations/tariff-actions and https://www.cbp.gov/trade/remedies/301-certain-products-china, respectively. Sincerely, Craig T. Clark, Director Commercial and Trade Facilitation Division