CLA-2 CO:R:C:T 950705 CC
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
Commercial Rulings Division