HQ 0087722 - Internal Advice Request No. 48/90 relating to the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a plastic product known by the brand name "Kyowaglas-XA" - United States International Trade Commision Rulings

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HQ 087722

April 30, 1991

CLA-2 CO:R:C:F 087722 RFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 3920.59.5000; 3926.90.9050; 9902.39.26

Ms. Jean F. Maguire
Area Director
New York Seaport Area
6 World Trade Center
New York, New York 10048

RE: Internal Advice Request No. 48/90 relating to the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a plastic product known by the brand name "Kyowaglas-XA"

Dear Ms. Maguire:

This request for internal advice was initiated by a letter dated April 20, 1990, from Genevieve Donahue-Beecken of Wolf D. Barth Co., Inc., on behalf of Mitsui Plastics, Inc.

FACTS:

The merchandise is identified in the materials of record as "Kyowaglas-XA." It is stated to be a transparent lead-containing plastic sheet that is used for shielding of radiation in medical, dental, and atomic facilities. Kyowaglas-XA is stated to be a copolymer consisting of the following ingredients:
lead salt of methacrylic acid & aliphatic acid...65 wt % methyl methacrylate..............................17 wt % styrene..........................................05 wt % polyethylene glycol dimethacrylate...............13 wt %

A review of the ingredients shows that the "lead salt" of methacrylic acid and aliphatic acid chemically cross-links in with the other ingredients to form one thermoset-type plastic sheet or acrylic plastic sheet.

The merchandise is stated to be imported in three forms: (1) plain and unworked sheets (hereinafter "Product No. 1"); (2) sheets with drilled holes (hereinafter "Product No. 2"); and (3) sheets (apparently with drilled holes) and a frame with casters (hereinafter "Product No. 3"). All sheets are apparently imported in widths exceeding 5 mm.

ISSUES:

(1) What is the proper tariff classification under the HTSUSA of plain and unworked plastic sheets imported in widths exceeding 5 mm and consisting of the above-listed ingredients?

(2) What is the proper tariff classification under the HTSUSA of plastic sheets with drilled holes imported in widths exceeding 5 mm and consisting of the above-listed ingredients?

(3) What is the proper tariff classification under the HTSUSA of plastic sheets (apparently with drilled holes) imported in widths exceeding 5 mm and consisting of the above-listed ingredients and imported together with frames with casters in a set?

LAW AND ANALYSIS:

Merchandise imported into the United States is classified under the HTSUSA. The tariff classification of merchandise under the HTSUSA is governed by the principles set forth in the General Rules of Interpretation (GRIs). The GRIs are part of the HTSUSA and are considered to be statutory provisions of law for all purposes. See Sections 1204(a) and 1204(c) of the Omnibus Trade and Competitiveness Act of 1988 (19 U.S.C. 1204(a) and 1204(c)).

GRI 1 requires that classification be determined first according to the terms of the headings of the tariff (i.e., (1) merchandise is to be classified under the four-digit heading that most specifically describes the merchandise; (2) only four-digit headings are comparable; and (3) merchandise must first satisfy the provisions of a four-digit heading before consideration is given to classification under a subheading within this four-digit heading) and any relative section or chapter notes and, provided such headings or notes do not otherwise require, then according to the following GRIs.

When goods are, prima facie, classifiable under two or more headings, classification is to be effected pursuant to the provisions of GRI 3. GRI 3(b) states, in part, that "[m]ixtures [and] composite goods consisting of different materials or made up of different components...which cannot be classified by reference to 3(a)...[(i.e., there is no heading in the schedule that provides the most specific description among headings providing a more general description)], shall be classified as if they consisted of the material or component which gives them their essential character...." Explanatory Note Rule 3(b)(VIII) states, in part, that "[t]he factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or the role of a constituent material in relation to the use of the goods."

The Explanatory Notes to the Harmonized System represent the official interpretation of the Customs Cooperation Council on the scope of each heading. See H.R. Conf. Report No. 100-576, 100th Cong., 2d Sess. 549 (1988); 23 Customs Bulletin No. 36, 3 (T.D. 89-90, Sept. 6, 1989), 59 F.R. 35127 (Aug. 23, 1989). Although not binding on the contracting parties to the Harmonized System Convention or considered to be dispositive in the interpretation of the Harmonized System, the Explanatory Notes should be consulted on the proper scope of the Harmonized System. Id.

A review of both the schedule and the classifications proposed by the importer reveals that two chapters merit consideration in the instant analysis: chapter 39 and chapter 78. Chapter 39 covers plastics and articles thereof. Within this chapter, there are three headings under which one or more of the instant products may be potentially classified: 3920, 3921 and 3926. As regards headings 3920 and 3921, note 10 to chapter 39 sets forth the following restrictions:

In headings 3920 and 3921, the expression "plates, sheets, film, foil and strip" applies only to plates, sheets, film foil and strip (other than those of chapter 54) and to blocks of regular geometric shape, whether or not printed or otherwise surface-worked, uncut or cut into rectangles (including squares) but not further worked (even if when so cut they become articles ready for use).

To be classified under these two headings, goods may not, among other things, be worked other than being printed or otherwise surface-worked.

Heading 3920 provides for "other plates, sheets, film, foil and strip, of plastics, noncellular and not reinforced, laminated, supported or similarly combined with other materials." Guidance concerning the scope of heading 3920 can be found in the Explanatory Notes to this heading:

This heading covers plates, sheets, film, foil and strip of plastics, other than those of heading 39.18 or 39.19. It does not cover cellular products or those which have been reinforced, laminated, supported or similarly combined with other materials (heading 39.12). The heading also excludes strip of an apparent width not exceeding 5 mm (Chapter 54).

. . .

According to Note 10 to this Chapter, the expression "plates, sheets, film, foil and strip" applies only to plates, sheets, film, foil and strip and to blocks of regular geometric shape, whether or not printed or otherwise surfaced- worked (for example, polished, embossed, coloured, merely curved or corrugated), uncut or cut into rectangles (including squares) but not further worked (even if when so cut they become articles ready for use, for example, tablecloths).

Plates, sheets, etc., whether or not surface-worked (including squares and other rectangles cut therefrom), with ground edges, drilled, milled, hemmed, twisted, framed or otherwise worked or cut into shapes other than rectangular (including square) are generally classified as articles of headings 39.18, 39.19 or 39.22 to 39.26.

Under heading 3926, then, are classified sheets of plastic that (1) have not been "further worked" and (2) are not "reinforced, laminated, supported or similarly combined with other materials," as this terminology is described above and in the general explanatory note referenced and discussed below in regard to heading 3921. The cross-linking that occurs in acrylic plastic is not the type of combination described by this terminology.

The second heading in chapter 39 in which one or more of the instant products may be potentially classified is 3921. This heading provides for "other plates, sheets, film and strip, of plastics." Guidance concerning the scope of heading 3921 can be found in the Explanatory Notes to this chapter:

This heading covers plates, sheets, film, foil and strip, of plastics, other than those of heading 39.18, 39.19 or 39.20 or of Chapter 54. It therefore covers only cellular products or those which have been reinforced, laminated, supported or similarly combined with other materials. (For the classification of plates, etc. combined with other materials, see the General Explanatory Note.)

According to Note 10 to this Chapter, the expression "plates, sheets, film, foil and strip" applies only to plates, sheets, film, foil and strip and to blocks of regular geometric shape, whether or not printed or otherwise surface-worked (for example, polished, embossed, coloured, merely curved or corrugated), uncut or cut into rectangles (including squares) but not further worked (even if when so cut they become articles ready for use).

Plates, sheets, etc., whether or not surface-worked (including squares and other rectangles cut therefrom), with round edges, drilled, milled, hemmed, twisted, framed or otherwise worked or cut into shapes other than rectangular (including square) are generally classified as articles of heading 39.18, 39.19 or 39.22 to 39.26.

The "general explanatory note" referenced in the above, first paragraph of the Explanatory Notes to heading 3921 is entitled "Combinations of Plastics and Materials Other Than Textiles." It states, in part, that:

[Chapter 39]...covers the following products, whether they have been obtained by a single operation or by a number of successive operations provided that they retain the essential character of articles of plastics:

(a) Plates, sheets, etc., incorporating a reinforcement or a supporting mesh of another material (wire, glass fibres, etc.) embedded in the body of the plastics.

(b) Products consisting of plastics plates, sheets, etc., separated by a layer of another material such as metal foil, paperboard, etc.

(c) Paper reinforced stratified plastic sheeting, and products consisting of one layer of paper or paperboard coated or covered with a layer of plastics, the latter constituting more than half the total thickness, other than wall coverings of heading 48.14.

(d) Products consisting of glass fibres or sheets of paper, impregnated with plastics and compressed together, provided they have a hard, rigid character....

Under heading 3921, then, are classified sheets of plastic that (1) have not been "further worked" but that are (2) "reinforced, laminated, supported or similarly combined with other materials," as this terminology is described above. As discussed above, the cross-linking that occurs in acrylic plastic is not the type of combination that is described by this terminology.

The third heading in chapter 39 in which one or more of the instant products may be potentially classified is 3926. This heading provides for "other articles of plastics and articles of materials of headings nos. 39.01 to 39.14." Guidance concerning the scope of heading 3926 can be found in the Explanatory Notes to this heading:

This heading covers articles, not elsewhere specified or included, of plastics (as defined in Note 1 to the Chapter) or of other materials of headings 39.01 to 39.14.

In chapter note 1 to chapter 39, "plastics" is defined as:

[T]hose materials of headings Nos. 3901 to 3914 which are or have been capable, either at the moment of polymerization or at some subsequent stage, of being formed under external influence (usually heat and pressure, if necessary with a solvent or plasticizer) by molding, casting, extruding, rolling or other process into shapes which are retained on the removal of the external influence.
Classification under heading 3926, then, would only occur if the terms of no other heading in the schedule adequately describe a product made of plastics or of materials of headings 3901 to 3914.

The second chapter in which one or more of the instant products may be potentially classified is 78. The importer contends that one or more of the products may be classified under heading 7806. This heading provides for "other articles of lead." Guidance concerning the coverage of heading 7806 can be found in the Explanatory Notes to this heading:

This heading covers all lead articles not included in the preceding headings of...[Chapter 78]..., or in Chapter 82 or 83, or more specifically covered elsewhere in the Nomenclature (see Note 1 to Section XV), whether these articles are cast, pressed, stamped, etc.

To be classified under this heading, then, merchandise (1) must fit the description under the HTSUSA of an "article of lead" and (2) must not be more specifically covered elsewhere in the schedule (which includes other headings of chapter 78).

Product No. 1

As imported, the product identified above as Product No.1 merely consists of plain and unworked sheets of acrylic plastic. In light of the above discussions, this product squarely fits within the article description provided for in heading 3920. Therefore, Product No. 1 is properly classified under heading 3920.

Product No. 2

As imported, the product identified above as Product No. 2 merely consists of sheets of acrylic plastic with drilled holes. These drilled holes render the product in condition of being "further worked," as this terminology is described above. In light of the above discussions, this product does not fit the article descriptions provided for in either heading 3920 or heading 3921. Accordingly, based on its material composition, Product No. 2 is an article of plastics; thus, it fits the article description provided for in heading 3926. Therefore, Product No. 2 is properly classified under heading 3926.

Product No.3

As imported, the product identified above as Product No. 3 merely consists of a sheet of acrylic plastic with drilled holes and a frame with caster. As a result of this combination of goods, this product is a composite good. There is no heading in the schedule to describe this specific composite product. Therefore, resort must be made to GRI 3(b) which provides for the classification of composite goods.

As discussed above, when there is no heading in the schedule that provides the most specific description for composite goods consisting of different components, the goods shall be classified as if they consist of the material or component that gives them their "essential character." In the instant case, the sheeting material is used as a visible shield or barrier to protect against radiation while providing visibility to allow one to observe the activities occurring behind the shield or barrier. Therefore, it is the sheets of acrylic plastic that provide the commercial appeal of the product; and the role of the sheets of acrylic plastic in relation to the use of the product gives the product its essential character. Product No. 3, therefore, must be classified as if consisting of the sheets of acrylic plastic with drilled holes, pursuant to GRI 3(b).

The sheets of acrylic plastic with drilled holes as constituting a component of Product No. 3 are in all respects identical to Product No. 2. Therefore, consistent with the classification of Product No. 2, as discussed above, Product No. 3 is properly classified under heading 3926.

As discussed above, the importer in its submissions regarding this case lists heading 7806 as a potential heading under which one or more of its products may be classified. This heading provides for "other articles of lead." As clearly indicated above, the sheeting material that comprises the importer's products retains its properties and characteristics as a plastic despite the addition of the lead. Unquestionably, then, the sheeting materials are considered to be plastic in composition under GRI 3(b) (i.e., the essential character of the material is plastic) or under any other analysis (e.g., chemical analysis). Therefore, heading 7806 is not a proper heading under which to classify any of the above- described products as (1) they do not fit the description under the HTSUSA of an "article of lead" and (2) they are more specifically covered elsewhere in the schedule.

HOLDING:

Product No. 1

The product identified above as Product No. 1 and consisting of plain and unworked sheets of acrylic plastic is properly classified under subheading 3920.59.5000, HTSUSA, which provides for other plates, sheets, film, foil and strip, of plastics, noncellular and not reinforced, laminated, supported or similarly combined with other materials, of acrylic polymers, other, not flexible. The general rate of duty for goods classified under this subheading is 18.7 cents/kg.

Product No. 2

The product identified above as Product No. 2 and consisting of sheets of acrylic plastic with drilled holes is properly classified under subheading 3926.90.9050, HTSUSA, which provides for other articles of plastics and articles of other materials of heading 3901 to 3914, other, other, other. The general rate of duty for goods classified under this subheading is 5.3 percent ad valorem.

Certain goods classified under subheading 3926.90.90, however, may also qualify for special tariff treatment under subheading 9902.39.26. Within this subheading are classified "[t]ransparent sheeting of plastics containing 30 percent or more by weight of lead (provided for in subheading 3926.90.90)." Goods meeting the article description of and properly classified under this subheading may be entered free of duty during the year 1990. As indicated above, Product No. 2 meets this article description and is properly classified under subheading 9902.39.26 (i.e., the product is a transparent sheeting of plastics containing 30 percent or more by weight of lead and is provided for in subheading 3926.90.90). Accordingly, Product No. 2 qualifies for duty free treatment under subheading 9902.39.26 for the year 1990.

Product No. 3

The product identified above as Product No. 3 and consisting of sheets of acrylic plastic with drilled holes and a frame with casters is properly classified under subheading 3926.90.9050, HTSUSA, which provides for other articles of plastics and articles of other materials of headings 3901 to 3914, other, other, other. The general rate of duty for goods classified under this subheading is 5.3 percent ad valorem.

Unless the content otherwise requires otherwise, the GRIs apply to the provisions of chapter 99. See U.S. Note No. 2 to chapter 99 of the HTSUSA. Product No. 3 has been classified above as if consisting of the sheets of acrylic plastic with drilled holes, pursuant to GRI 3(b), under subheading 3926.90.90. Therefore, like Product No. 2, Product No. 3 meets the article description of and is properly classified under subheading 9902.39.26. Accordingly, Product No. 3 qualifies for duty free treatment under subheading 9902.39.26 for the year 1990.

You should inform the importer of this ruling.

Sincerely,

John Durant, Director
Commercial Rulings Division

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