CLA-2; CO:R:C:T 951833 ch
Bernhard B. Barta
General Manager
Franz Haas Machinery of America, Inc.
6207 Settler Road
Richmond, VA 23231
RE: Revocation of HRL 089860; packaging trays made from
gelatinized starch and cellulose; wood fibers; molded
article of heading 9602; moulded; not article of
cellulose wadding.
Dear Mr. Barta:
Headquarter Ruling Letter (HRL) 089860, dated April 3, 1992,
concerned the classification of meat packaging trays under the
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA). We have had occasion to review this ruling and find
that the classification of said merchandise under subheading
4823.90.70, HTSUSA, is in error.
FACTS:
The subject merchandise are trays used to package meat
products. Though they visually resemble styrofoam, they are not
made from plastic materials. You have submitted the formula
utilized to manufacture the trays, which indicates that the
starting mixture from which they are made consists of
approximately 45 percent starch, 50 percent water, between 0 to 5
percent chopped wood fibers and minute quantities of other
additives such as release agents, emulsifiers, fillers and
colors. You have advised us that the finished product consists
of approximately 90 percent by weight maize or potato starch, and
10 percent by weight of cellulose fibers.
The manufacturing process of the trays begins with starch
granules that are partly crystalline, which renders the granules
insoluble. When starch granules come in contact with water of a
certain temperature, normally above 65 degrees Celsius, they
start to swell. This process is called gelatinization, and
refers to the swelling and hydration of granular starches. A gel
of a certain viscosity is formed. When the gel is dried, the
starch granules do not recrystallize to their original structure,
but remain in a state of molecular association, where they adhere
to each other by hydrogen bonding.
The starting mixture is heated inside baking molds under
pressure. In the first stage of the baking process, when most of
the water is still inside the dough, gelatinization occurs. When
the temperature rises over 100 degrees Celsius and the steam
leaves the mold through the steam slits, the starch gel is dried
down to a very low water content. The remaining steam bubbles
give the product its porous texture.
The freshly baked product is brittle, due to a lack of water
in the starch structure. Additional strength is given to the
product during a conditioning step, where the water content of
the material is increased from about one percent to ten percent
by contact of the product with air of a controlled moisture
content.
In HRL 089860, the trays were classified under subheading
4823.90.70, HTSUSA, which provides for articles of paper pulp,
paper, paperboard, cellulose wadding or webs of cellulose fibers.
ISSUE:
Whether the subject merchandise is classified under heading
4823, HTSUSA, which provides for, inter alia, cellulose wadding
and webs of cellulose fibers, or under heading 9602, HTSUSA,
which provides for other molded articles, not elsewhere specified
or included?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRI). GRI 1 provides that
classification is determined first in accordance with the terms
of the headings of the tariff and any relative section or chapter
notes. Where goods cannot be classified on the basis of GRI 1,
the remaining GRI will be applied in order.
In HRL 089860, we stated:
It is our determination that this product can be
classified pursuant to GRI 1. As noted supra, the
Customs Laboratory found that the article consists
"essentially" (emphasis added) of wood fibers and
starch. According to The Dictionary of Paper, Fourth
Edition, 1980, at pp. 80-81, cellulose wadding normally
contains "wood pulp." "Wood Pulp," according to The
Dictionary of Paper at p. 455, is made up of wood
fiber. These definitions support the laboratory
finding that the product is classifiable as an article
of cellulose wadding in subheading 4823.90.70, HTSUSA.
As noted, the other primary component of the final
product is starch. However, while the tariff schedule
does include provisions for the classification of
several starches, there is no provision for finished
manufactured products of starch.
Thus, we concluded that your merchandise was classifiable
under heading 4823 for two reasons. First, we found that the
trays were classifiable under heading 4823 because both cellulose
wadding and the trays contained "wood fibers." Second, we stated
that while the trays contained starch, there was no provision for
finished manufactured products of starch. We have reconsidered
these findings and have determined that they are in error.
The classification of the meat packing trays as articles of
cellulose wadding does not take into account the role starch
plays in their formation and composition. Starch comprises
approximately 90 percent of the weight by volume of the
merchandise. In addition, it is the bonding of granular starches
in the gelatinization process that gives the trays the appearance
and characteristics of styrofoam. Finally, the distinctive
feature of the trays is the fact that they are biodegradable.
This environmental function is only possible because the trays
are primarily composed of starch.
Starches, in their various raw forms, are classified as
vegetable products under Section II, heading 1108, HTSUSA. In
HRL 089860, we concluded that the HTSUSA contains no provision
for finished manufactured products of starch. However, heading
9602, which provides in part for molded articles not elsewhere
specified or included, appears to be applicable. The EN to
heading 9602 state, in pertinent part that:
This group includes, on the one hand, moulded and
carved articles of various materials, provided those
articles are not specified or included in other
headings of the Nomenclature...
* * *
For the purposes of these materials, the
expression "moulded articles" means articles which have
been moulded to a shape appropriate to their intended
use. On the other hand, materials moulded in the shape
of blocks, cubes, plates, bars, sticks, etc., whether
or not impressed during moulding, are not included.
Subject to the exclusions mentioned below, this
group includes:
* * *
(7) Moulded or carved articles made with a basis
of flour or starch, agglomerated with gum and
lacquered (imitation flowers or fruit,
moulded in one piece, statuettes, etc.).
As noted above, the packaging trays are shaped to form
inside baking molds. The EN to heading 9602 indicate that it
encompasses molded and carved articles of "various materials,"
including articles "made with a basis of starch." Thus, molded
articles of starch and other materials, such as wood fibers, are
within its purview.
Although the heading excludes from coverage articles molded
in the shape of "blocks, cubes, plates, bars, sticks, etc.," the
common trait shared by these exemplars is the fact that they are
generic forms suitable for a variety of uses. As the subject
merchandise is molded to a form suitable for a specific purpose
(packaging meat products), it is not excluded from the terms of
heading 9602.
Accordingly, the subject merchandise is classifiable under
heading 9602.
HOLDING:
The subject merchandise is classifiable under subheading
9602.00.5000, HTSUSA, which provides for worked vegetable or
mineral carving material and articles of these materials; molded
or carved articles of wax, of stearin, of natural gums or natural
resins, of modeling pastes, and other molded or carved articles,
not elsewhere specified or included; worked, unhardened gelatin
(except gelatin of heading 3503) and articles of unhardened
gelatin: other. The applicable rate of duty is 3.7 percent.
This notice to you should be considered a revocation of HRL
089860 under 19 CFR 177.9(d)(1). It is not to be applied
retroactively to HRL 089860 (19 CFR 177.9(d)(2)) and will not,
therefore, affect past transactions for the importation of your
client's merchandise under that ruling. However, for the
purposes of future transactions in merchandise of this type, HRL
089860 will not be valid precedent. We recognize that pending
transactions may be adversely affected by this modification, in
that current contracts for importations arriving at a port
subsequent to this decision will be classified pursuant to it.
If such a situation arises, your client may, at its discretion,
notify this office and apply for relief from the binding effects
of this decision as may be warranted by the circumstances. However, please be advised that in some instances involving
import restraints, such relief may require separate approvals
from other government agencies.
Sincerely,
John Durant, Director