CLA-2 CO:R:C:G 087759 KWM
Mr. Young H. Lee
Union Incorporated
320 Kalmus Drive
Costa Mesa, California 92626
RE: Revocation of Headquarters Ruling Letter 085524; Printed
polypropylene film; Printed matter; Merely incidental to
the primary use of the goods; Note 2 to Section VII,
HTSUSA; Packing container; Plastic sheet.
Dear Mr. Lee:
On December 28, 1989, this office issued to you a tariff
classification under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA) for certain printed
polypropylene film imported from South Korea and used as
packaging material for ramen noodles. Since that ruling was
issued, we have reconsidered our position regarding the
classification of printed polypropylene film and have
determined that Headquarters Ruling Letter (HRL) 085524 is
incorrect. Therefore, we are hereby revoking that ruling
letter and re-classifying the merchandise as explained below.
FACTS:
HRL 085524 describes the subject merchandise as follows:
The instant merchandise is imported in the form of
printed polypropylene film in roll form, approximately 6-
7/8 inches in width. The film is printed with product
information such as instructions for making the ramen
noodles, menu suggestions, the name of the product
("Smack Ramen Oriental Noodle Soup"), the net weight and
the ingredients. The film has magnetic ink marks which
can be read by an electric eye to trigger a mechanism to
cut the film to the desired length.
After importation, the printed polypropylene is cut
into lengths and used to package ramen noodles.
In your request for a binding ruling, you suggest that the
goods be classified under heading 3923, HTSUSA, as articles
for the packing and conveyance of goods. HRL 085524 held that
the goods were not "containers" of heading 3923, HTSUSA, but
were classified in heading 4911, HTSUSA, as printed matter.
In the alternative, if the goods were imported without
printing, they would be classified in heading 3920, HTSUSA, as
plastic film of polymers of propylene. That holding was based
on a finding that the printing on the plastic film was "not
merely incidental to the primary use of the goods" as
indicated by Note 2 to Section VII, HTSUSA.
ISSUE:
Are the goods classified under heading 4911, HTSUSA, as
other printed material?
If not, how are the goods classified?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of
the United States Annotated (HTSUSA) is made in accordance
with the General Rules of Interpretation (GRI's). The
systematic detail of the harmonized system is such that
virtually all goods are classified by application of GRI 1,
that is, according to the terms of the headings of the tariff
schedule and any relevant Section or Chapter Notes.
The central question here is whether or not the printing
found on the polypropylene film is "merely incidental" to the
primary use of the goods, as indicated by Note 2 to Section
VII, HTSUSA. Contrary to the findings in HRL 085524, we now
believe that it is. There is no question that the primary use
of the film in this case is as a wrapper for ramen noodle
preparations. In deciding whether or not the printing is
merely incidental, we look to the Explanatory Notes, which
constitute the official interpretation of the tariff schedule
at the international level. The Explanatory Notes to Chapter
49, HTSUSA, provide in pertinent part that articles "of which
the essential nature and use is determined by the fact of its
being printed with motifs, characters or pictorial
representations" are classified as printed matter.
In HRL 085524, this office expressed the opinion that the
instructions and illustrations were more than merely
incidental to the film's use as a wrapper. However, its
essential nature is not determined by the printing. The
Explanatory Notes anticipate and we have held that articles
such as seed packets, record sleeves, and other articles
"printed, e.g., with the name of the merchant, directions for
use, illustrations" are not printed matter. The information
conveyed by the printing here is comparable to that on seed
packets or other articles; it is clearly described as
"directions for use" and "illustrations." The printing here
is not more than merely incidental to the primary use of the
goods.
Having excluded the goods from coverage under Chapter 49,
HTSUSA, we are faced with the other finding of HRL 085524:
whether or not the terms of heading 3923 or 3920, HTSUSA apply
to these goods. We believe this portion of HRL 085524 to be
essentially correct:
[The importer] argues that the printed polypropylene film
should be classified under the provision for articles for
the conveyance or packing of goods, of plastics, other,
in subheading 3923.90.00, HTSUSA. We observe that, in
its imported form, the instant merchandise is incapable
of "containing," as it consists of rolls of continuous
lengths of plastic printed film.
Further, the Explanatory Notes contain a diversity of
exemplars, including boxes, bags and sacks, yet significantly
do not mention food wrap or plastic wrap such as this. We do
not consider the polypropylene film to be ejusdem generis to
the terms of heading 3923, HTSUSA. The goods of that heading,
and the Explanatory Note exemplars, are all of the type used
for shipping of goods in the stream of commerce, generally at
the wholesale level, rather than the packaging found on
individual items marketed for retail transactions. Lastly,
the instant goods are not "articles", but rather a component
material for the manufacture of packaging.
The terms of heading 3920, HTSUSA, provide for plates,
sheets and film of non-cellular plastics. The Explanatory
Notes indicate that goods of this heading may be printed. We
are of the opinion that this heading provides for the instant
goods. This finding is substantiated by a comparison of
heading 3920, HTSUSA, to heading 3923, HTSUSA. Assuming,
arguendo, that both headings described the goods, we would
consider heading 3920, HTSUSA, to be the more specific
description according to GRI 3(a).
HOLDING:
HRL 085524 is hereby revoked. The instant goods, printed
polypropylene film imported in rolls, is classified by
application of GRI 1 in subheading 3920.20.0000, HTSUSA, as
other film of non-cellular plastics, of polymers of propylene.
The applicable rate of duty is 4.2 percent ad valorem.
For the purposes of future transactions in this
merchandise, HRL 085524 will not be valid precedent. We
recognize that pending transactions may be adversely affected
by this revocation in that current contracts for importation
arriving at a port subsequent to the release of this
revocation may be classified under the modified ruling. If
such a situation arises, you may, at your discretion and
pursuant to section 177.9 of the Code of Federal Regulations,
notify this office and apply for relief from the binding
affect of the new ruling as may be dictated by the
circumstances.
Sincerely,
John A. Durant
Director
Commercial Rulings Division