CLA-2; CO:R:C:T 951833 ch

Bernhard B. Barta
General Manager
Franz Haas Machinery of America, Inc.
6207 Settler Road
Richmond, VA 23231

RE: Revocation of HRL 089860; packaging trays made from gelatinized starch and cellulose; wood fibers; molded article of heading 9602; moulded; not article of cellulose wadding.

Dear Mr. Barta:

Headquarter Ruling Letter (HRL) 089860, dated April 3, 1992, concerned the classification of meat packaging trays under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). We have had occasion to review this ruling and find that the classification of said merchandise under subheading 4823.90.70, HTSUSA, is in error.

FACTS:

The subject merchandise are trays used to package meat products. Though they visually resemble styrofoam, they are not made from plastic materials. You have submitted the formula utilized to manufacture the trays, which indicates that the starting mixture from which they are made consists of approximately 45 percent starch, 50 percent water, between 0 to 5 percent chopped wood fibers and minute quantities of other additives such as release agents, emulsifiers, fillers and colors. You have advised us that the finished product consists of approximately 90 percent by weight maize or potato starch, and 10 percent by weight of cellulose fibers.

The manufacturing process of the trays begins with starch granules that are partly crystalline, which renders the granules insoluble. When starch granules come in contact with water of a certain temperature, normally above 65 degrees Celsius, they start to swell. This process is called gelatinization, and refers to the swelling and hydration of granular starches. A gel of a certain viscosity is formed. When the gel is dried, the starch granules do not recrystallize to their original structure, but remain in a state of molecular association, where they adhere to each other by hydrogen bonding.

The starting mixture is heated inside baking molds under pressure. In the first stage of the baking process, when most of the water is still inside the dough, gelatinization occurs. When the temperature rises over 100 degrees Celsius and the steam leaves the mold through the steam slits, the starch gel is dried down to a very low water content. The remaining steam bubbles give the product its porous texture.

The freshly baked product is brittle, due to a lack of water in the starch structure. Additional strength is given to the product during a conditioning step, where the water content of the material is increased from about one percent to ten percent by contact of the product with air of a controlled moisture content.

In HRL 089860, the trays were classified under subheading 4823.90.70, HTSUSA, which provides for articles of paper pulp, paper, paperboard, cellulose wadding or webs of cellulose fibers.

ISSUE:

Whether the subject merchandise is classified under heading 4823, HTSUSA, which provides for, inter alia, cellulose wadding and webs of cellulose fibers, or under heading 9602, HTSUSA, which provides for other molded articles, not elsewhere specified or included?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification is determined first in accordance with the terms of the headings of the tariff and any relative section or chapter notes. Where goods cannot be classified on the basis of GRI 1, the remaining GRI will be applied in order.

In HRL 089860, we stated:

It is our determination that this product can be classified pursuant to GRI 1. As noted supra, the Customs Laboratory found that the article consists "essentially" (emphasis added) of wood fibers and starch. According to The Dictionary of Paper, Fourth Edition, 1980, at pp. 80-81, cellulose wadding normally contains "wood pulp." "Wood Pulp," according to The Dictionary of Paper at p. 455, is made up of wood fiber. These definitions support the laboratory finding that the product is classifiable as an article of cellulose wadding in subheading 4823.90.70, HTSUSA. As noted, the other primary component of the final product is starch. However, while the tariff schedule does include provisions for the classification of several starches, there is no provision for finished manufactured products of starch.

Thus, we concluded that your merchandise was classifiable under heading 4823 for two reasons. First, we found that the trays were classifiable under heading 4823 because both cellulose wadding and the trays contained "wood fibers." Second, we stated that while the trays contained starch, there was no provision for finished manufactured products of starch. We have reconsidered these findings and have determined that they are in error.

The classification of the meat packing trays as articles of cellulose wadding does not take into account the role starch plays in their formation and composition. Starch comprises approximately 90 percent of the weight by volume of the merchandise. In addition, it is the bonding of granular starches in the gelatinization process that gives the trays the appearance and characteristics of styrofoam. Finally, the distinctive feature of the trays is the fact that they are biodegradable. This environmental function is only possible because the trays are primarily composed of starch.

Starches, in their various raw forms, are classified as vegetable products under Section II, heading 1108, HTSUSA. In HRL 089860, we concluded that the HTSUSA contains no provision for finished manufactured products of starch. However, heading 9602, which provides in part for molded articles not elsewhere specified or included, appears to be applicable. The EN to heading 9602 state, in pertinent part that:

This group includes, on the one hand, moulded and carved articles of various materials, provided those articles are not specified or included in other headings of the Nomenclature...

* * *

For the purposes of these materials, the expression "moulded articles" means articles which have been moulded to a shape appropriate to their intended use. On the other hand, materials moulded in the shape of blocks, cubes, plates, bars, sticks, etc., whether or not impressed during moulding, are not included.

Subject to the exclusions mentioned below, this group includes:

* * *

(7) Moulded or carved articles made with a basis of flour or starch, agglomerated with gum and lacquered (imitation flowers or fruit, moulded in one piece, statuettes, etc.).

As noted above, the packaging trays are shaped to form inside baking molds. The EN to heading 9602 indicate that it encompasses molded and carved articles of "various materials," including articles "made with a basis of starch." Thus, molded articles of starch and other materials, such as wood fibers, are within its purview.

Although the heading excludes from coverage articles molded in the shape of "blocks, cubes, plates, bars, sticks, etc.," the common trait shared by these exemplars is the fact that they are generic forms suitable for a variety of uses. As the subject merchandise is molded to a form suitable for a specific purpose (packaging meat products), it is not excluded from the terms of heading 9602.

Accordingly, the subject merchandise is classifiable under heading 9602.

HOLDING:

The subject merchandise is classifiable under subheading 9602.00.5000, HTSUSA, which provides for worked vegetable or mineral carving material and articles of these materials; molded or carved articles of wax, of stearin, of natural gums or natural resins, of modeling pastes, and other molded or carved articles, not elsewhere specified or included; worked, unhardened gelatin (except gelatin of heading 3503) and articles of unhardened gelatin: other. The applicable rate of duty is 3.7 percent.

This notice to you should be considered a revocation of HRL 089860 under 19 CFR 177.9(d)(1). It is not to be applied retroactively to HRL 089860 (19 CFR 177.9(d)(2)) and will not, therefore, affect past transactions for the importation of your client's merchandise under that ruling. However, for the purposes of future transactions in merchandise of this type, HRL 089860 will not be valid precedent. We recognize that pending transactions may be adversely affected by this modification, in that current contracts for importations arriving at a port subsequent to this decision will be classified pursuant to it. If such a situation arises, your client may, at its discretion, notify this office and apply for relief from the binding effects of this decision as may be warranted by the circumstances. However, please be advised that in some instances involving import restraints, such relief may require separate approvals from other government agencies.

Sincerely,

John Durant, Director