CLA-2 CO:R:C:G 087501 HP
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
COMMERCIAL RULINGS DIVISION