Fujifilm Thermo-Autochrome film; polyethylene terephthalate film; QMS, Inc. v. U.S.; thermography

HQ 958194 April 17, 1996 CLA-2-RR:TC:FC 958194 EAB CATEGORY: Classification TARIFF NO.: 3921.90.40 Ned H. Marshak, Esquire Sharretts, Paley, Carter & Blauvelt, P.C. 67 Broad Street New York, New York 10004 Re: Fujifilm Thermo-Autochrome film; polyethylene terephthalate film; QMS, Inc. v. U.S.; thermography Dear Mr. Marshak: This is in response to your correspondence dated May 30, 1995, on behalf of Nissho Iwai American Corp., in which you request a binding ruling concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of certain merchandise to be imported into the customs territory of the U.S. FACTS: Review of the text and data attachments to and observation of the sample submitted with the written request indicate a polyethylene terephthalate film sheet coated with discrete layers of cyan, magenta and yellow pigments in either unspecified gelatin or phenol compounds, as the case may be. The product is used in "dry" thermographic imaging. It is anticipated that it will be imported in separate sheets and in rolls. ISSUE: Whether polyethylene terephthalate thermographic film is classifiable under the HTSUSA as photographic film. LAW AND ANALYSIS: Merchandise imported into the U.S. is classified under the HTSUSA. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUSA and are to be considered statutory provisions of law for all purposes. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. In QMS, Inc. v. U.S., CIT Slip Op. 95-65 (April 18, 1995), the Court determined that polyethylene terephthalate sheets or film was properly classifiable as "photographic" film under heading 3702 of the HTSUSA applicable to the calendar years 1989 and 1990 entries at issue. The HTSUSA (1996) contains a provision not found in the HTSUSA (1990), in view of which we do not find the foregoing case to be dispositive of the classification of this polyethylene terephthalate thermographic film. Furthermore, "photographic" film, among other conditions or characteristics in order to be classified under heading 3702, HTSUSA, must be sensitized. The film for which you are requesting a classification determination identical to that reported in the QMS case, is not "sensitized," regardless of whether or not it is "photographic" film. We are of the opinion that merchandise such as this, to be entered in 1996, is not classifiable as photographic film; rather, it is specifically provided for as thermographic sheets or film of plastics as described in heading 3921. HOLDING: Polyethylene terephthalate thermographic film is classifiable under subheading 3921.90.40, HTSUSA, a provision for "Other plates, sheets, film, foil and strip, of plastics: Other: Other: Flexible" and dutiable at the column one General rate of 4.2 percent ad valorem. Sincerely, John Durant, Director Tariff Classification Appeals Division