CLA-2 CO:R:C:T 088984 HP
Mr. John Heinrich
District Director
U.S. Customs Service
300 South Ferry Street
Terminal Island
San Pedro, CA 90731
RE: Application for further review of protest no. 2704-90-
002046. Rolls of unassembled printed plastic packaging for
various noodle mixes are plastic sheeting, not packaging.
Dear Mr. Heinrich:
This is in reply to your memorandum of September 11, 1990,
transmitting CF 19 and related papers pursuant to your request
for Further Review of Protest No. 2704-90-002046.
FACTS:
The merchandise at issue consists of polyethylene plastic
sheeting, described on Protestant's February 14, 1990, invoice
as:
polyethylene coated packing container in
rolls. Size: 286mm x 1000m/roll. Paper
core: I/D Dia76mm. Quality: Cellophane P.T.
300 colour print, laminated PE 20 microns.
The merchandise at issue is described by Protestant as identical
to that in Sanwa Foods, Inc. v. United States, 9 C.I.T. 167
(March 25, 1985). The Court stated: The imported
merchandise consists of rolls of unassembled
plastic packaging for various noodle mixes
produced by plaintiff. Printed on each roll
at regular intervals are the trademarked
product brand name, product descriptions,
preparation instructions, and magnetic black
ink marks. The marks are read by an electric
eye, which triggers a mechanism that cuts,
folds, and seals the plastic around various
noodle mixes in accordance with the location
of the marks. The subject merchandise thus
serves both to protect its contents and
promote the sale of the product.
ISSUE:
Whether the plastic sheeting is considered printed matter,
packaging, or sheeting under the Harmonized Tariff Schedule of
the United States Annotated (HTSUSA)?
LAW AND ANALYSIS:
Printed Matter
In the entry being protested, the merchandise was classified
under subheading 4911.99.8000, HTSUSA, as other printed matter.
This appraisal by the import specialist was in reliance upon HRL
085524 of December 28, 1989, which held that identical merchan-
dise was printed matter, since the illustrations and instructions
were more than merely incidental to the film's use as a wrapper.
In HRL 087759 of December 24, 1990, we revoked HRL 085524,
stating that:
[the film's] essential character is not
determined by the printing. The Explanatory
Notes [to Chapter 49] 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 "illus-
trations." The printing here is not more
than merely incidental to the primary use of
the goods.
Classification of this merchandise as "printed matter" under
heading 4911, HTSUSA, was therefore incorrect.
Packaging vs. Film
Protestant has argued that since the merchandise is not
classified as printed matter, classification under heading 3923,
HTSUSA, as articles for the conveyance or packing of goods, is
appropriate. This contention is based upon the language in Sanwa
Foods, supra, wherein the Court held that the merchandise was
properly classifiable under item 772.20, Tariff Schedules of the
United States, as a container chiefly used for the packing,
transporting and marketing of merchandise. Our New York office
has strongly disagreed with this proposed classification, stating
that placement under heading 3920, HTSUSA, as plastic sheets, is
correct.
In HRL 087759, we also underwent this analysis, noting the
following:
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 the conveyance or packing of
goods, of plastics, other, in sub-
heading 3923.90.00, HTSUSA. We
observe that, in its imported form,
the instant merchandise is incapa-
ble 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 wholesale level,
rather than the packaging found on individual
items marked for retail transactions.
Lastly, the instant goods are not "articles",
but rather a component material for the manu-
facture of packaging.
The terms of heading 3920, HTSUSA,
provides 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 describe the goods, we would con-
sider heading 3920, HTSUSA, to be the more
specific description according to [General
Rule of Interpretation] 3(a).
Following the logic of HRL 087759, the instant merchandise is
properly classifiable in heading 3920, HTSUSA.
Protestant's reliance upon Sanwa Foods is unfounded.
Resulting from the enactment of the Omnibus Trade and Competi-
tiveness Act of 1988, Pub. L. No. 100-418, 102 Stat. 1107 (1988),
the Harmonized Tariff Schedule of the United States Annotated
(HTSUSA) became our tariff code, effective January 1, 1989. The
language of the applicable tariff schedule, plus the legal notes
and rules of interpretation to that schedule, are quite differ-
ent. While the competing provisions in Sanwa Foods were between
plastic packaging and plastic articles not specifically provided
for, the HTSUSA requires a contrast between plastic packaging and
plastic sheets or film. As we stated above, even assuming that
packaging (unfinished or incomplete) describes the goods, sheets
or film, where such sheets or film may be printed upon, is more
specific. See Note 10 to Chapter 39, HTSUSA (defining plastic
sheets and film).
HOLDING:
As a result of the foregoing, the instant merchandise is
classified under subheading 3920.10.0000, HTSUSA, as other
plates, sheets, film, foil and strip, of plastics, noncellular
and not reinforced, laminated, supported or similarly combined
with other materials, of polymers of ethylene. The applicable
rate of duty is 4.2 percent ad valorem.
You are instructed to deny the protest, except to the extent
reclassification of the merchandise is indicated above results in
a partial allowance. A copy of this decision should be forwarded
to the Protestant.
Sincerely,
John Durant, Director
Commercial Rulings Division