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HQ 950705


July 17, 1992

CLA-2 CO:R:C:T 950705 CC

CATEGORY: CLASSIFICATION

TARIFF NO.: 3923.21.0090

John A. Slagle
Wolf D. Barth Co., Inc.
7575 Holstein Ave.
Philadelphia, PA 19153

RE: Modification of NYRL 863789; classification of coffee bags; inner layer of aluminum, outer layers of plastic; classifiable in Heading 3923

Dear Mr. Slagle:

This letter is in response to your request, on behalf of Fres-Co. Systems USA, for reconsideration of New York Ruling Letter (NYRL) 863789, dated June 18, 1991, concerning the classification of bags used to package coffee. A sample was submitted for examination.

FACTS:

Two types of bags were classified in NYRL 863789. The bag for which you request reconsideration is a bag composed of three layers. The inner layer is made of aluminum and the outer layers are made of plastic. According to your submissions, the weight of the polyester (polyurethane) is 2.87 grams, the weight of the aluminum foil is 2.54 grams, and the weight of the polyethylene is 8.82 grams. This merchandise is used to package coffee. There is a small "button" vent on the front of the bag which allows gases produced by the coffee to escape, keeping it fresh.

A sample was sent to a Customs laboratory for examination. An analysis shows that the outer layer is composed of polyurethane and polyethylene .1 millimeter thick, the middle layer is composed of aluminum .02 millimeters thick, and the inner layer is composed of polyethylene terephthalate .03 millimeters thick. In the analyst's opinion, "the form of the bag is given by the plastic layers, while the aluminum layer provides an airtight barrier against light, moisture and other vapors, which can cause decomposition."

In NYRL 863789 it was ruled that the bag composed of an inner layer of aluminum was classifiable under subheading 7612.90.1090 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for aluminum casks, drums, cans, boxes and similar containers (including rigid or collapsible tubular containers), for any material (other than compressed or liquefied gas), of a capacity not exceeding 300 liters, whether or not lined or heat insulated, but not fitted with mechanical or thermal equipment, other, of a capacity not exceeding 20 liters, other. You contend that the proper classification of this bag is subheading 3923.21.0090, HTSUSA, which provides for articles for the conveyance or packing of goods, of plastics, sacks and bags (including cones), of polymers of ethylene, other, other.

ISSUE:

Whether the merchandise at issue is classifiable in Heading 3923, HTSUSA, or in Heading 7612, HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

The Explanatory Notes, the official interpretation of the HTSUSA at the international level, provide guidance concerning the classification of combinations of plastics and materials other than textiles, stating the following at page 554:

This Chapter (Chapter 39) also 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:

...

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

...

The merchandise at issue consists of plastics separated by a layer of aluminum. In addition, the aluminum layer is mainly a moisture barrier and does not provide any form or strength to the bag, and the plastic predominates by weight overwhelmingly. Consequently, this bag retains the essential character of an article of plastic. The requirements of the Explanatory Note concerning combinations of plastics and materials other than textiles have been met, and accordingly, this merchandise is classifiable in Heading 3923, HTSUSA, which provides for articles for the conveyance or packing of goods, of plastics.

Subheading 3923.21, HTSUSA, provides for sacks and bags of polymers of ethylene. Subheading 3923.29, HTSUSA, provides for sacks and bags, of other plastics. GRI 6 provides that classification under subheadings is in accordance with the terms of the subheadings and then, if necessary, in accordance with GRI's 2 through 4, on the understanding that only subheadings at the same level are comparable. GRI 6 also states that for the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires. Note 4 to Chapter 39 provides that for the purposes of this chapter, except where the context otherwise requires, copolymers (including co-polycondensates, co-polyaddition products, block copolymers and graft copolymers) and polymer blends are to be classified in the heading covering polymers of that comonomer which predominates by weight over every other single comonomer, comonomers whose polymers fall in the same heading being regarded as constituting a single comonomer. Since the polyethylene predominates by weight, the merchandise at issue is classifiable under subheading 3923.21.

HOLDING:

The merchandise at issue is classifiable under subheading 3923.21.0090, HTSUSA, which provides for articles for the conveyance or packing of goods, of plastics, sacks and bags (including cones), of polymers of ethylene, other, other. The rate of duty is 3 percent ad valorem.

This notice to you should be considered a modification of NYRL 863789 under 19 CFR 177.9(d)(1).

Sincerely,

John Durant, Director

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