CLA-2: RR:CR:TE: 967463 BtB
Paula M. Connelly, Esq.
Middleton & Shrull
44 Mall Road
Suite 208
Burlington, MA 01803-4530
RE: The tariff classification of laminated polyethylene wrap from Italy; NY K89821, affirmed
Dear Ms. Connelly:
This is in response to your letter dated November 8, 2004, on behalf of Lindt & Sprungli (USA), Inc., requesting reconsideration of New York Ruling Letter (NY) K89821, issued on October 5, 2004, by the National Commodity Specialist Division (NCSD). NY K89821 addresses the tariff classification of certain laminated polyethylene wrap from Italy (“truffle wrap”) under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).
FACTS:
A description of the samples of the truffle wrap that you provided with your original ruling request was set forth in NY K89821:
The samples submitted with your request are lengths of plastic sheeting that will be used for wrapping chocolate truffles. The printed wrapping material is imported in roll form and cut to length after importation. The wrapping is a two layer laminate that consists of an outer printed polyethylene sheet and an inner aluminum strip. The aluminum is adhered to the polyethylene by application of a hot wax. The sheet measures 4 ¼ inches in width. The aluminum backing measures 2 ¼ inches in width and is laminated to the middle portion of the plastic sheet. The polyethylene is printed with the trademark Lindt/Lindor brand name and with a repeating white alpine lace floral design. Some of the sheets are printed with UPC codes.
In your November 8, 2004 letter, you do not dispute the above description of the truffle wrap. You do, however, provide a thorough description of the truffle wrap after it is cut to length after importation and put onto individual chocolate truffles. You refer to the truffle wrap in this condition as “wrappers” and, therefore, we do the same in this ruling. In your letter, you state:
The wrappers are color coded, thus the truffle purchaser will be able to determine the type of truffle enclosed therein. In addition, the well-known “alpine lace” trademark and “Lindt/Lindor” trademarks on the wrapper identifies the truffle as a Lindt product.
The outer polyethylene sheet is printed and contains the “Lindt” and “Lindor” trademarks and the branding recognition of the “white alpine lace.” This white alpine lace is a significant element of the packaging as all Lindt products sold under the “Lindor” trademark must contain this lace design. This lace design is included on all boxes, bags, and similar packaging for Lindor brand products. It is a significant element of the packaging of all Lindt products as it provides product recognition to purchasers.
In addition, the polyethylene strip is also color coded. Again, this is a significant element of the packaging as it provides the ultimate purchaser with information concerning the type of truffle contained therein.
In NY K89821, the NCSD ruled that the truffle wrap is classified under subheading 3921.90.4090, HTSUSA, covering “Other plates, sheets, film, foil and strip, of plastics: Other: Other: Flexible, Other.” In your November 8, 2004 letter, you assert that the truffle wrap is classified under subheading 4911.99.8000, as “Other printed matter, including printed pictures and photographs: Other: Other: Other: Other.”
ISSUE:
Whether the truffle wrap is classified in heading 4911, HTSUSA, as other printed matter, or in heading 3921, HTSUSA, as other plates, sheets, film, foil and strip, of plastics?
LAW AND ANALYSIS:
Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides, in part, that classification decisions are to be "determined according to the terms of the headings and any relative section or chapter notes." If the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied, in order.
As a general rule, merchandise is classified in its condition as imported. See United States v. Citroen, 223 U.S. 407 (1911). Therefore, the condition of the truffle wrap after it is cut to length after importation and put onto individual chocolate truffles, as “wrappers,” is irrelevant in this matter. Classification of the truffle wrap will be based on its condition as plastic sheeting in roll form, as it is imported.
The HTSUSA headings under consideration for classification of the truffle wrap are heading 4911, HTSUSA, covering “Other printed matter, including printed pictures and photographs” and heading 3921, HTSUSA, covering “Other, plates, sheets, film, foil and strip, of plastics.” You assert that the truffle wrap is classified under heading 4911, HTSUSA, and you have cited numerous rulings that you maintain support classification of the truffle wrap under this provision. We have thoroughly examined these rulings, and have carefully considered the legal arguments you have presented. For purposes of expediency, we will omit discussion of rulings on dissimilar merchandise and authorities not directly on point and, therefore, not believed to be controlling. Instead, we will limit our discussion to the rulings and legal authorities on which we believe this case turns. See Apple Computer, Inc. v. United States, 749 F. Supp. 1142 (CIT 1990).
We believe this case turns on whether the truffle wrap, as imported, constitutes a “printed” product under Chapter 49, HTSUSA, specifically under heading 4911. The HTSUSA does not provide a definition of “printed” in regard to Chapter 49 in its legal notes. The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).
While the HTSUSA does not define “printed,” the General EN to Chapter 49 offers guidance regarding the scope of the Chapter, stating, in pertinent part, that subject to the few enumerations listed in the EN, the Chapter covers “all printed matter of which the essential nature and use is determined by the fact of its being printed with motifs, characters or pictoral representations.”
In your November 8, 2004 letter, you emphasize the importance of the colors of the truffle wrap and the presence of the “white alpine lace” design and “Lindt” and “Lindor” trademarks on the wrap. You assert that these features establish the essential nature and use of the truffle wrap, as printed matter, by allowing the ultimate purchaser to identify the truffles that will later be packaged in the wrap.
General EN to Chapter 49 states, in pertinent part, that the term “printed” “does not, however, include coloration or decorative or repetitive-design printing.” Accordingly, the coloration of the truffle wrap and the repetitive “white alpine lace” design are not regarded as “printed.” After disregarding these characteristics from consideration, what remains on the truffle wrap is the “Lindt” and “Lindor” trademarks and UPC codes. We recognize that the trademarks and the UPC codes may be helpful to the ultimate consumer and other parties in the stream of commerce after the truffle wrap is made into “wrappers.” However, we find any utility that the trademarks and UPC codes provide to be significantly incidental to the wrap’s primary purpose of protecting the truffles. The essential character of the truffle wrap, as imported, is that of plastic film, not that of printed material. Consequently, the truffle wrap is not classifiable under heading 4911, HTSUSA.
While heading 4911, HTSUSA, does not cover the truffle wrap, heading 3921, HTSUSA, does. Chapter 39, HTSUSA, covers “Plastics and Articles Thereof.” Heading 3921, HTSUSA, covers: “Other, plates, sheets, film, foil and strip, of plastics.” The scope of heading 3921, HTSUSA, captures articles that have been printed or colored. Note 10 to Chapter 39, HTSUSA, states, in relevant part, that the expression “plates, sheets, film, foil and strip” in heading 3921, HTSUSA, includes plates, sheets, film, foil and strip whether or not printed or otherwise surface worked, uncut or cut into rectangles, but not further worked. (Emphasis added). The EN to heading 3921 explicitly refers to coloration as an example of surface working. While the truffle wrap is a combination of plastic and aluminum, the plastic is significantly wider than the foil and predominates in protecting the truffle by keeping it securely wrapped. As a result, we find that the truffle wrap retains the essential character of plastic. The EN to heading 3921 specifically addresses combinations of this nature, stating that the heading “ … covers only cellular plastics or those which have been reinforced, laminated, supported or similarly combined with other materials.”
In conclusion, the polyethylene strip has been combined with an inner aluminum strip to form the truffle wrap, which is colored and printed. Pursuant to the terms of heading 3921 and the legal notes, with guidance from the EN, this article clearly falls within the scope of heading 3921, as plastic film similarly combined with other materials. This conclusion is consistent with previous rulings in which CBP classified combinations of this nature under heading 3921, HTSUSA (See, e.g., NY J80001, dated January 29, 2003, NY J80009, dated January 29, 2003 and NY 885740, dated May 17, 1993).
HOLDING:
The laminated polyethylene truffle wrap from Italy is classified in subheading 3921.90.4090, HTSUSA, covering “Other plates, sheets, film, foil and strip, of plastics: Other: Other: Flexible, Other.” The applicable column one, general duty rate under the 2005 HTSUSA is 4.2 percent ad valorem.
EFFECT ON OTHER RULINGS:
NY K89821, dated October 5, 2004, is affirmed.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division