HQ 0087501 - Beverage can wraps of textile shell and plastic freezable insertable pack has essential character imparted by shell. Polyvinyl alcohol; carboxymethylcellulose - United States International Trade Commision Rulings

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HQ 087501

July 26, 1990

CLA-2 CO:R:C:G 087501 HP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.90.9590

M. Terry Lewis
Vice President - Imports
E.L. Vanderberry Co., Inc.
P.O. Box 3295
Norfolk, VA 23514

RE: Beverage can wraps of textile shell and plastic freezable insertable pack has essential character imparted by shell. Polyvinyl alcohol; carboxymethylcellulose

Dear M. Lewis:

This is in reply to your letter of April 19, 1990, concerning the tariff classification of textile wraps for drinks, produced in China, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Please reference your client Wilmor Company.

FACTS:

The merchandise at issue consists of two types of wraps for beverage cans. Type 1 has 100% printed fabric inner and outer shells, to be composed of such fibers as synthetic cotton, polyester, etc. (25.7% of the total weight of the wrap), nylon hook-and-loop fastener and silk braid (4.4%), and a nonwoven polypropylene insulating layer (8.3%). Type 2 is similar, except that the inner shell is composed of a metallic-like plastic film. Both types have interior pockets, in which are placed hermetically sealed, non toxic freezable gel packets. The packets, which account for 62% of the total weight of the wraps, are composed of a compound plastic film material, H2O, polyvinyl alcohol ("PVA"), and an antiseptic.

You state that the freezer packet is placed in the freezer, and then inserted into the textile sleeve. Your advertisements claim that the Cool Wrap is safe, non toxic, comes in assorted colors to eliminate confusion as to whom the beverage belongs, secures firmly with Velcro , keeps drinks cold, and keeps hands warm.

ISSUE:

Whether the Cool Wrap is an article of textile under the HTSUSA?

LAW AND ANALYSIS:

The packets are filled with polyvinyl alcohol (PVA). Heading 3905, HTSUSA, provides for, inter alia, polymers (molecules characterized by repetition of one or more types of monomer units) of vinyl acetate or of other vinyl esters, in primary form. The Explanatory Notes (EN) to the HTSUSA constitute the official interpretation of the tariff at the international level. While not legally binding, they do represent the considered views of classification experts of the Harmonized System Committee. It has therefore been the practice of the Customs Service to follow, whenever possible, the terms of the Explanatory Notes when interpreting the HTSUSA.

The Subheading EN to Subheading Note 1 to Chapter 39 states, in pertinent part:

(A)(4) Polyvinyl alcohols, which are obtained by hydrolysis of polyvinyl acetates and are therefore chemically modified polyvinyl acetates, are to be classified in subheading
3905.20 because this subheading specifically names them.

The EN to heading 3905 states:

The heading covers all vinyl polymers other than those of
heading 39.04 [polymers of vinyl chloride]. A vinyl polymer is one whose monomer (a molecule that can be chemically bound as a unit of a polymer) has the formula

Polyvinyl alcohol is usually prepared by the hydrolysis of polyvinyl acetate. [PVAs] are available in a number of grades depending upon the content of unhydrolysed vinyl acetate groups.
These are excellent emulsifiers and dispersing agents and are used as protective colloids [(suspension of finely divided particles in a continuous medium)], adhesives, binders and thickeners in paints, pharmaceuticals and cosmetics and in textiles.

The packets are constructed of an undefined plastic film. Heading 3926, HTSUSA, provides for other articles of plastics. The EN to heading 3926 includes therein (9) Plastic containers filled with carboxymethylcellulose [(CMC)] (used as ice bags).

Although the instant packets are filled will PVA, rather than CMC, they are substantially similar to the exemplar enumerated in the above EN, and are prima facie classifiable in heading 3926. Heading 6307, provides for other made up articles of textiles. The outer component of both types of wraps are primarily composed of textiles. The wraps are, therefore, also prima facie classifiable in heading 6307. The General Rules of Interpretation (GRIs) to the HTSUSA govern the classification of goods in the tariff schedule. GRI 1 states, in pertinent part:

... classification shall be determined according to the terms of the headings and any relative section or chapter notes ...

Goods which cannot be classified in accordance with GRI 1 are to be classified in accordance with subsequent GRIs, taken in order.

GRI 3 states, in pertinent part:

When by application of Rule 2(b)
[goods of more than one material or substance] or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

(b) ... [C]omposite goods ... made up of different components..., which cannot be classified by reference to 3(a) [which requires that goods be classified, if possible, under the more specific of the competing provisions], shall be classified as if they consisted of the ... component which gives them their essential character, insofar as this criterion is applicable.

EN (IX) to GRI 3 provides:

For the purposes of [GRI 3(b)], composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted to one another and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts.

[C]lassification [of composite goods] is made according to the component, or components taken together, which can be regarded as conferring on the [composite good] as a whole its essential character.

The factors which determine essential character of an article will vary from case to case. It may be the nature of the materials or the components, its bulk, quantity, weight, value, or the role a material plays in relation to the use of the goods. In general, essential character has been construed to mean the attribute which strongly marks or serves to distinguish
what an article is; that which is indispensable to the structure or condition of an article.

It is our opinion that the textile shell imparts the essential character of Cool Wraps . The textile contributes to the wrap its assorted colors, its secure fastening to the can, and its ability to keep the hand warm. While the freezer pack does keep the beverage cold, a significant feature, the packet is unusable without the outer wrap, and has no practical value apart from the textile portion. The Cool Wraps are therefore classifiable as articles of textiles.

HOLDING:

As a result of the foregoing, the instant merchandise is classified under subheading 6307.90.9590, HTSUSA, as other made up articles, including dress patterns, other, other, other, other. The applicable rate of duty is 7 percent ad valorem.

Sincerely,

JOHN DURANT, DIRECTOR

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