CLA-2 RR:CR:GC 966630AM
Port Director
U.S. Customs and Border Protection
Post Office Box 789 Great Falls, MT 59403
RE: Internal Advice 03/019; Container Liners, Bulkheads, Straps and Bracing Bars
Dear Port Director:
This is in reference to your letter dated August 18, 2003, forwarding Internal Advice requested by letter dated March 3, 2003, from UPS Supply Chain Solutions, regarding the classification of Norseman Inc. container liners, bulkheads, straps and bars, pursuant to the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The instant merchandise consists of resin container liners, partial containment liners, material and cardboard bulkheads and webbing straps and metal bars. All of the liners are used to line a container for the shipment of bulk goods, avoiding the need to package the goods otherwise. All of the reinforced polyethylene fabric is woven from polyethylene strips that measure less than 5 mm in width. All are coated on both sides with polyethylene.
The resin container liners are constructed of reinforced woven polyethylene fabric coated on both sides with polyethylene. A combination of three fabric weights, three-ounce, six-ounce, and ten-ounce, are used for construction of the liner, attached to each other with welded and sewn seams. The bulk of the liner is constructed of the two lighter-weight fabrics, while the ten-ounce fabric is used only for grommets and tags on the liner. The liner covers the entire interior and doorway of a container and may include a cardboard bulkhead attachment.
The containment liners are constructed of a single weight of reinforced woven polyethylene fabric, coated on both sides with gray and white polyethylene coating. This partial liner, covering the floors and walls of the container, is available in two different weights of fabric.
Bulkheads cover the doorway of a container only, acting as a fourth wall to hold the product in the container. The twelve-ounce heavyweight material bulkheads are constructed of reinforced woven polyethylene coated on both sides with polyethylene of gray and white color. The cardboard bulkheads are constructed with 3-ply corrugated cardboard with folding flaps on three sides.
The liners and bulkheads require the use of webbing straps and metal bars. According to the product information on the www.Norseman.ca website, “Norseman liners require 5 steel bracing bars. Four bars secure the bulkhead at the door end. One secures the liner floor at the non-door end. Norseman recommends a bar 1.66” (4.20cm) POD X .125” (3.18mm) wall minimum by 94.5” (240 cm) long or equivalent shaped steel tube. Norseman can supply bracing bars to customers without local suppliers.” The steel bars and webbing straps may or may not be shipped with the container liners.
ISSUES:
1) Whether container liners, made of different weights of coated polyethylene fabrics sewn or welded together, are classified as man-made textile articles or as plastic articles.
2) Whether bars and webbing shipped with container liners are classified in the provision for the container liners as a set, or whether they are classified separately as articles of steel and articles of man-made textile fabric respectively.
LAW AND ANALYSIS:
Merchandise imported into the U.S. is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context that requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs.
In interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89 80, 54 Fed. Reg. 35127 (August 23, 1989).
The HTSUS provisions dealing with the container liners, containment liners, and material bulkheads are as follows:
3923 Articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics:
Sacks and bags (including cones):
3923.21.00 Of polymers of ethylene
* * * * * * * * * * * *
Other articles of plastics and articles of other materials of headings 3901 to 3914:
Other:
Other
* * * * * * * * * * * * *
Sacks and bags, of a kind used for the packing of goods:
Of man-made textile materials:
6305.32.00 Flexible intermediate bulk containers
* * * * * * * * * * * * *
Other made up articles, including dress patterns:
Other:
Other:
6307.90.98 Other
* * * * * * * * * * * *
Section XI, Note 1(g), HTSUS, states, that the section does not cover: "Monofilament of which any cross-sectional dimension exceeds 1 mm or strip or the like (for example, artificial straw) of an apparent width exceeding 5 mm, of plastics (chapter 39), or plaits or fabrics or other basketware or wickerwork of such monofilament or strip (chapter 46)."
Note 2(a) to Chapter 59, HTSUS, states, in pertinent part, that heading 5903 applies to "Textile fabrics, impregnated, coated, covered or laminated with plastics, whatever the weight per square meter and whatever the nature of the plastic material (compact or cellular), other than: . . . (3) Products in which the textile fabric is either completely embedded in plastics or entirely coated or covered on both sides with such material, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change of color (chapter 39)."
Consistent with Note 2(a) to Chapter 59, HTSUS, the General EN to Chapter 39, HTSUS, states the following with regard to "Plastics and textile combinations:" " . . . the classification of plastics and textile combinations is essentially governed by Note 1(h) to Section XI, Note 3 to Chapter 56 and Note 2 to Chapter 59. The following products are also covered by this Chapter: . . . .(b) Textile fabrics and nonwovens, either completely embedded in plastics or entirely coated or covered on both sides with such material, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change of colour; . . . ."
Hence, the classification of the container liners is dependent upon whether the material from which the liner is made is a textile or plastic material. Without the coating, the synthetic fabric meets the width requirement of Section XI, Note 1(g), and is therefore a textile fabric. For textile fabrics coated with plastic on both sides, however, the distinction between a textile and plastic material is whether the coating can be seen with the naked eye with no account being taken of any resulting change of color, i.e., if the coating can be seen with the naked eye, the product is classified in Chapter 39, HTSUS (EN 59.03). See also HQ 950931, dated April 24, 1992, NY F84105, dated March 17, 2000, HQ 087253, dated June 1, 1990, HQ 082644, dated March 2, 1990, and HQ 088313, dated August 2, 1991.
In HQ 088313, dated August 2, 1991 and HQ 950931, dated April 24, 1992, we found that the coated fabric did not consist of a coating visible to the naked eye. On comparing the samples submitted in those case files to the instant samples, we find that the three- and six-ounce fabrics do not have coatings visible to the naked eye. Since the bulk of the resin container liners is constructed of these fabrics, we find that the liner itself is classified as a textile good in Chapter 63.
As between classification in heading 6305, HTSUS, as a sack or bag and heading 6307, as an other made up article, we find that the instant merchandise is described by the EN for subheading 6305.32, which states, in pertinent part, "Flexible intermediate bulk containers are usually made of polypropylene or polyethylene woven fabrics and generally have a capacity ranging from 250 kg to 3,000 kg. They may have lifting straps at the four top corners and may be fitted with openings at the top and bottom to facilitate loading and unloading. They are generally used for packing, storage, transport and handling of dry, flowable materials." The instant resin container liners are for the transportation of dry, flowable materials and contain a spout and lifting straps for loading and unloading. Hence, they are classified in subheading 6305.32.00, HTSUS, the provision for "Sacks and bags, of a kind used for the packing of goods: Of man-made textile materials: Flexible intermediate bulk containers." While other container liners of coated fabric were classified elsewhere in NY F84105, dated March 17, 2000, NY G86718, dated February 22, 2001, and NY J84889, dated June 12, 2003, we believe that the container liners of those rulings were made of fabrics with coatings that were visible to the naked eye.
However, the gray and white coated fabric does consist of a coating that is visible to the naked eye. The containment liners of this material, however, are three sided and do not constitute a sack or bag. Therefore, the partial containment liners made of this fabric, are classified in subheading 3926.90.98, HTSUS, the provision for "Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other."
The material bulkheads are designed to create a fourth wall within a container. They are not containers in and of themselves. Hence, they cannot be classified in heading 3923, HTSUS. Rather, they are classified in subheading 3926.90.98, HTSUS, the provision for "Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other."
The HTSUS provisions pertaining to the cardboard bulkheads are as follows:
Paper and paperboard, corrugated (with or without glued flat surface sheets), creped, crinkled, embossed or perforated, in rolls or sheets, other than paper of the kind described in heading 4803:
4808.10.00 Corrugated paper and paperboard, whether or not perforated
* * * * * * * * * * * *
Cartons, boxes, cases, bags and other packing containers, of paper, paperboard, cellulose wadding or webs of cellulose fibers; box files, letter trays and similar articles, of paper or paperboard of a kind used in offices, shops or the like:
4819.50 Other packing containers, including record sleeves:
4819.50.40 Other
* * * * * * * * * * * *
4823 Other paper, paperboard, cellulose wadding and webs of cellulose fibers, cut to size or shape; other articles of paper pulp, paper, paperboard, cellulose wadding or webs of cellulose fibers:
Other:
Other:
Other:
Other:
4823.90.86 Other
Note 8 to Chapter 48 states:
Headings 4801 and 4803 to 4809 apply only to paper, paperboard, cellulose wadding and webs of cellulose fibres:
In strips or rolls of a width exceeding 36 cm; or
(b) In rectangular (including square) sheets with one side exceeding 36 cm and the other side exceeding 15 cm in the unfolded state.
The cardboard bulkheads are flat sheets of corrugated cardboard with folding flaps on three sides which assist in placing the cardboard vertically over the doorway of the container, thus creating the fourth wall of the container. As such, the flattened cardboard bulkhead is not in strips, rolls, rectangular or square, as mandated by Note 8 to Chapter 48 for classification in heading 4808, HTSUS. Furthermore, like the material bulkheads, they are not containers in and of themselves and therefore cannot be classified as such in heading 4819, HTSUS. Rather, the bulkheads are cut to a particular shape. They are therefore classified in subheading 4823.90.86, HTSUS, the provision for "Other paper, paperboard, cellulose wadding and webs of cellulose fibers, cut to size or shape; other articles of paper pulp, paper, paperboard, cellulose wadding or webs of cellulose fibers: Other: Other: Other: Other: Other."
The HTSUS provisions dealing with the bracing bars and webbing straps are:
Other made up articles, including dress patterns:
Other:
Other:
6307.90.98 Other
* * * * * * * * * * * *
Other articles of iron or steel:
Other:
Other:
Other:
7326.90.85 Other
Section VII, Note 1 states, in pertinent part, the following:
1. Goods put up in sets consisting of two or more separate constituents, some or all of which fall in this section and are intended to be mixed together to obtain a product of section VI or VII, are to be classified in the heading appropriate to that product, provided that the constituents are:
(a) Having regard to the manner in which they are put up, clearly identifiable as being intended to be used together without first being
repacked;
(b) Entered together; and
(c) Identifiable, whether by their nature or by the relative proportions in which they are present, as being complementary one to
another.
The bracing bars and webbing straps are sometimes entered with the liner components and sometimes entered separately. When entered with the liner components, the importer believes they are classifiable in the same provision as the liner components. We disagree.
To be classified as such, the entire contents must be considered a set under Section VII, Note 1, HTSUS. According to Norseman’s product information on its website (stated in the FACTS section of this ruling), the need for the bars and straps varies depending on the size of the container, use of a bulkhead and a myriad of other considerations. It is therefore likely that customers order the bars and straps to meet their particular needs and they are imported as a stock item whether entered with the liners or separately. They must be packed with the liner or other goods ordered by each and every customer. Hence, whether entered with the liners or separately, the bars, actually equivalent to shaped steel tubes, are classified in subheading 7326.90.85, the provision for "Other articles of iron or steel: Other: Other: Other: Other." The straps are classified in subheading 6307.90.98, as "Other made up articles, including dress patterns: Other: Other: Other."
HOLDINGS:
Resin container liners made predominantly of three- and six-ounce fabric submitted as samples here are classified in subheading 6305.32.00, HTSUS, the provision for "Sacks and bags, of a kind used for the packing of goods: Of man-made textile materials: Flexible intermediate bulk containers."
Containment liners made of the gray and white coated fabric are classified in subheading 3926.90.98, HTSUS, the provision for "Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other."
The material bulkheads made of gray and white coated fabric are classified in subheading 3926.90.98, HTSUS, the provision for "Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other."
The cardboard bulkheads are classified in subheading 4823.90.86, HTSUS, the provision for "Other paper, paperboard, cellulose wadding and webs of cellulose fibers, cut to size or shape; other articles of paper pulp, paper, paperboard, cellulose wadding or webs of cellulose fibers: Other: Other: Other: Other: Other."
Whether imported with the liners or separately, the steel bars are classified in subheading 7326.90.85, HTSUS, the provision for "Other articles of iron or steel: Other: Other: Other: Other." The straps are classified in subheading 6307.90.98, HTSUS, as "Other made up articles, including dress patterns: Other: Other: Other."
You are directed to mail this decision to the internal advice applicant, no later than 60 days from the date of this letter. On that date the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other public methods of distribution.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division