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HQ 955453

March 6, 1995

CLA-2 CO:R:C:F 955453 ASM


TARIFF NO.: 3703.20.6000

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.


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,
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.


What is the proper classification under the HTSUSA for two products, identified as receiving paper PS-SG polyethylene coated, and receiving paper PG-SG?


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.


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)).


John Durant, Director

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