HQ 0088984 - 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. - United States International Trade Commision Rulings

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HQ 088984

July 24, 1991

CLA-2 CO:R:C:T 088984 HP

CATEGORY: CLASSIFICATION

TARIFF NO.: 3920.10.0000

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,

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