CLA-2 CO:R:C:F 087722 RFC
Ms. Jean F. Maguire
Area Director
New York Seaport Area
6 World Trade Center
New York, New York 10048
RE: Internal Advice Request No. 48/90 relating to the tariff
classification under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA) of a plastic product known
by the brand name "Kyowaglas-XA"
Dear Ms. Maguire:
This request for internal advice was initiated by a letter
dated April 20, 1990, from Genevieve Donahue-Beecken of Wolf D.
Barth Co., Inc., on behalf of Mitsui Plastics, Inc.
FACTS:
The merchandise is identified in the materials of record as
"Kyowaglas-XA." It is stated to be a transparent lead-containing
plastic sheet that is used for shielding of radiation in medical,
dental, and atomic facilities. Kyowaglas-XA is stated to be a
copolymer consisting of the following ingredients:
lead salt of methacrylic acid & aliphatic acid...65 wt %
methyl methacrylate..............................17 wt %
styrene..........................................05 wt %
polyethylene glycol dimethacrylate...............13 wt %
A review of the ingredients shows that the "lead salt" of
methacrylic acid and aliphatic acid chemically cross-links in with
the other ingredients to form one thermoset-type plastic sheet or
acrylic plastic sheet.
The merchandise is stated to be imported in three forms: (1)
plain and unworked sheets (hereinafter "Product No. 1"); (2) sheets
with drilled holes (hereinafter "Product No. 2"); and (3) sheets
(apparently with drilled holes) and a frame with casters
(hereinafter "Product No. 3"). All sheets are apparently imported
in widths exceeding 5 mm.
ISSUES:
(1) What is the proper tariff classification under the HTSUSA
of plain and unworked plastic sheets imported in widths exceeding
5 mm and consisting of the above-listed ingredients?
(2) What is the proper tariff classification under the HTSUSA
of plastic sheets with drilled holes imported in widths exceeding
5 mm and consisting of the above-listed ingredients?
(3) What is the proper tariff classification under the HTSUSA
of plastic sheets (apparently with drilled holes) imported in
widths exceeding 5 mm and consisting of the above-listed
ingredients and imported together with frames with casters in a
set?
LAW AND ANALYSIS:
Merchandise imported into the United States is classified
under the HTSUSA. The tariff classification of merchandise under
the HTSUSA is governed by the principles set forth in the General
Rules of Interpretation (GRIs). The GRIs are part of the HTSUSA
and are considered to be statutory provisions of law for all
purposes. See Sections 1204(a) and 1204(c) of the Omnibus Trade
and Competitiveness Act of 1988 (19 U.S.C. 1204(a) and 1204(c)).
GRI 1 requires that classification be determined first
according to the terms of the headings of the tariff (i.e., (1)
merchandise is to be classified under the four-digit heading that
most specifically describes the merchandise; (2) only four-digit
headings are comparable; and (3) merchandise must first satisfy
the provisions of a four-digit heading before consideration is
given to classification under a subheading within this four-digit
heading) and any relative section or chapter notes and, provided
such headings or notes do not otherwise require, then according to
the following GRIs.
When goods are, prima facie, classifiable under two or more
headings, classification is to be effected pursuant to the
provisions of GRI 3. GRI 3(b) states, in part, that "[m]ixtures
[and] composite goods consisting of different materials or made up
of different components...which cannot be classified by reference
to 3(a)...[(i.e., there is no heading in the schedule that provides
the most specific description among headings providing a more
general description)], shall be classified as if they consisted of
the material or component which gives them their essential
character...." Explanatory Note Rule 3(b)(VIII) states, in part,
that "[t]he factor which determines essential character will vary
as between different kinds of goods. It may, for example, be
determined by the nature of the material or component, its bulk,
quantity, weight or value, or the role of a constituent material
in relation to the use of the goods."
The Explanatory Notes to the Harmonized System represent the
official interpretation of the Customs Cooperation Council on the
scope of each heading. See H.R. Conf. Report No. 100-576, 100th
Cong., 2d Sess. 549 (1988); 23 Customs Bulletin No. 36, 3 (T.D.
89-90, Sept. 6, 1989), 59 F.R. 35127 (Aug. 23, 1989). Although
not binding on the contracting parties to the Harmonized System
Convention or considered to be dispositive in the interpretation
of the Harmonized System, the Explanatory Notes should be consulted
on the proper scope of the Harmonized System. Id.
A review of both the schedule and the classifications proposed
by the importer reveals that two chapters merit consideration in
the instant analysis: chapter 39 and chapter 78. Chapter 39 covers
plastics and articles thereof. Within this chapter, there are
three headings under which one or more of the instant products may
be potentially classified: 3920, 3921 and 3926. As regards
headings 3920 and 3921, note 10 to chapter 39 sets forth the
following restrictions:
In headings 3920 and 3921, the expression "plates, sheets,
film, foil and strip" applies only to plates, sheets, film
foil and strip (other than those of chapter 54) and to
blocks of regular geometric shape, whether or not printed or
otherwise surface-worked, uncut or cut into rectangles
(including squares) but not further worked (even if when so
cut they become articles ready for use).
To be classified under these two headings, goods may not, among
other things, be worked other than being printed or otherwise
surface-worked.
Heading 3920 provides for "other plates, sheets, film, foil
and strip, of plastics, noncellular and not reinforced, laminated,
supported or similarly combined with other materials."
Guidance concerning the scope of heading 3920 can be found in the
Explanatory Notes to this heading:
This heading covers plates, sheets, film, foil and strip of
plastics, other than those of heading 39.18 or 39.19. It
does not cover cellular products or those which have been
reinforced, laminated, supported or similarly combined with
other materials (heading 39.12). The heading also excludes
strip of an apparent width not exceeding 5 mm (Chapter 54).
. . .
According to Note 10 to this Chapter, the expression
"plates, sheets, film, foil and strip" applies only to plates,
sheets, film, foil and strip and to blocks of regular
geometric shape, whether or not printed or otherwise surfaced-
worked (for example, polished, embossed, coloured, merely
curved or corrugated), uncut or cut into rectangles
(including squares) but not further worked (even if when so
cut they become articles ready for use, for example,
tablecloths).
Plates, sheets, etc., whether or not surface-worked
(including squares and other rectangles cut therefrom), with
ground edges, drilled, milled, hemmed, twisted, framed or
otherwise worked or cut into shapes other than rectangular
(including square) are generally classified as articles of
headings 39.18, 39.19 or 39.22 to 39.26.
Under heading 3926, then, are classified sheets of plastic that
(1) have not been "further worked" and (2) are not "reinforced,
laminated, supported or similarly combined with other materials,"
as this terminology is described above and in the general
explanatory note referenced and discussed below in regard to
heading 3921. The cross-linking that occurs in acrylic plastic is
not the type of combination described by this terminology.
The second heading in chapter 39 in which one or more of the
instant products may be potentially classified is 3921. This
heading provides for "other plates, sheets, film and strip, of
plastics." Guidance concerning the scope of heading 3921 can be
found in the Explanatory Notes to this chapter:
This heading covers plates, sheets, film, foil and strip, of
plastics, other than those of heading 39.18, 39.19 or 39.20
or of Chapter 54. It therefore covers only cellular
products or those which have been reinforced, laminated,
supported or similarly combined with other materials. (For
the classification of plates, etc. combined with other
materials, see the General Explanatory Note.)
According to Note 10 to this Chapter, the expression
"plates, sheets, film, foil and strip" applies only to plates,
sheets, film, foil and strip and to blocks of regular geometric
shape, whether or not printed or otherwise surface-worked (for
example, polished, embossed, coloured, merely curved or
corrugated), uncut or cut into rectangles (including squares)
but not further worked (even if when so cut they become
articles ready for use).
Plates, sheets, etc., whether or not surface-worked
(including squares and other rectangles cut therefrom), with
round edges, drilled, milled, hemmed, twisted, framed or
otherwise worked or cut into shapes other than rectangular
(including square) are generally classified as articles of
heading 39.18, 39.19 or 39.22 to 39.26.
The "general explanatory note" referenced in the above, first
paragraph of the Explanatory Notes to heading 3921 is entitled
"Combinations of Plastics and Materials Other Than Textiles." It
states, in part, that:
[Chapter 39]...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:
(a) Plates, sheets, etc., incorporating a reinforcement
or a supporting mesh of another material (wire, glass fibres,
etc.) embedded in the body of the plastics.
(b) Products consisting of plastics plates, sheets,
etc., separated by a layer of another material such as metal
foil, paperboard, etc.
(c) Paper reinforced stratified plastic sheeting, and
products consisting of one layer of paper or paperboard
coated or covered with a layer of plastics, the latter
constituting more than half the total thickness, other than
wall coverings of heading 48.14.
(d) Products consisting of glass fibres or sheets of
paper, impregnated with plastics and compressed together,
provided they have a hard, rigid character....
Under heading 3921, then, are classified sheets of plastic that
(1) have not been "further worked" but that are (2) "reinforced,
laminated, supported or similarly combined with other materials,"
as this terminology is described above. As discussed above, the
cross-linking that occurs in acrylic plastic is not the type of
combination that is described by this terminology.
The third heading in chapter 39 in which one or more of the
instant products may be potentially classified is 3926. This
heading provides for "other articles of plastics and articles of
materials of headings nos. 39.01 to 39.14." Guidance concerning
the scope of heading 3926 can be found in the Explanatory Notes to
this heading:
This heading covers articles, not elsewhere specified or
included, of plastics (as defined in Note 1 to the Chapter)
or of other materials of headings 39.01 to 39.14.
In chapter note 1 to chapter 39, "plastics" is defined as:
[T]hose materials of headings Nos. 3901 to 3914 which are or
have been capable, either at the moment of polymerization or at
some subsequent stage, of being formed under external
influence (usually heat and pressure, if necessary with a
solvent or plasticizer) by molding, casting, extruding,
rolling or other process into shapes which are retained on
the removal of the external influence.
Classification under heading 3926, then, would only occur if the
terms of no other heading in the schedule adequately describe a
product made of plastics or of materials of headings 3901 to 3914.
The second chapter in which one or more of the instant
products may be potentially classified is 78. The importer
contends that one or more of the products may be classified under
heading 7806. This heading provides for "other articles of lead."
Guidance concerning the coverage of heading 7806 can be found in
the Explanatory Notes to this heading:
This heading covers all lead articles not included in the
preceding headings of...[Chapter 78]..., or in Chapter 82 or
83, or more specifically covered elsewhere in the
Nomenclature (see Note 1 to Section XV), whether these
articles are cast, pressed, stamped, etc.
To be classified under this heading, then, merchandise (1) must
fit the description under the HTSUSA of an "article of lead" and
(2) must not be more specifically covered elsewhere in the schedule
(which includes other headings of chapter 78).
Product No. 1
As imported, the product identified above as Product No.1
merely consists of plain and unworked sheets of acrylic plastic.
In light of the above discussions, this product squarely fits
within the article description provided for in heading 3920.
Therefore, Product No. 1 is properly classified under heading 3920.
Product No. 2
As imported, the product identified above as Product No. 2
merely consists of sheets of acrylic plastic with drilled holes.
These drilled holes render the product in condition of being
"further worked," as this terminology is described above. In light
of the above discussions, this product does not fit the article
descriptions provided for in either heading 3920 or heading 3921.
Accordingly, based on its material composition, Product No. 2 is
an article of plastics; thus, it fits the article description
provided for in heading 3926. Therefore, Product No. 2 is properly
classified under heading 3926.
Product No.3
As imported, the product identified above as Product No. 3
merely consists of a sheet of acrylic plastic with drilled holes
and a frame with caster. As a result of this combination of goods,
this product is a composite good. There is no heading in the
schedule to describe this specific composite product. Therefore,
resort must be made to GRI 3(b) which provides for the
classification of composite goods.
As discussed above, when there is no heading in the schedule
that provides the most specific description for composite goods
consisting of different components, the goods shall be classified
as if they consist of the material or component that gives them
their "essential character." In the instant case, the sheeting
material is used as a visible shield or barrier to protect against
radiation while providing visibility to allow one to observe the
activities occurring behind the shield or barrier. Therefore, it
is the sheets of acrylic plastic that provide the commercial appeal
of the product; and the role of the sheets of acrylic plastic in
relation to the use of the product gives the product its essential
character. Product No. 3, therefore, must be classified as if
consisting of the sheets of acrylic plastic with drilled holes,
pursuant to GRI 3(b).
The sheets of acrylic plastic with drilled holes as
constituting a component of Product No. 3 are in all respects
identical to Product No. 2. Therefore, consistent with the
classification of Product No. 2, as discussed above, Product No.
3 is properly classified under heading 3926.
As discussed above, the importer in its submissions regarding
this case lists heading 7806 as a potential heading under which one
or more of its products may be classified. This heading provides
for "other articles of lead." As clearly indicated above, the
sheeting material that comprises the importer's products retains
its properties and characteristics as a plastic despite the
addition of the lead. Unquestionably, then, the sheeting materials
are considered to be plastic in composition under GRI 3(b) (i.e.,
the essential character of the material is plastic) or under any
other analysis (e.g., chemical analysis). Therefore, heading 7806
is not a proper heading under which to classify any of the above-
described products as (1) they do not fit the description under the
HTSUSA of an "article of lead" and (2) they are more specifically
covered elsewhere in the schedule.
HOLDING:
Product No. 1
The product identified above as Product No. 1 and consisting
of plain and unworked sheets of acrylic plastic is properly
classified under subheading 3920.59.5000, HTSUSA, which provides
for other plates, sheets, film, foil and strip, of plastics,
noncellular and not reinforced, laminated, supported or similarly
combined with other materials, of acrylic polymers, other, not
flexible. The general rate of duty for goods classified under this
subheading is 18.7 cents/kg.
Product No. 2
The product identified above as Product No. 2 and consisting
of sheets of acrylic plastic with drilled holes is properly
classified under subheading 3926.90.9050, HTSUSA, which provides
for other articles of plastics and articles of other materials of
heading 3901 to 3914, other, other, other. The general rate of
duty for goods classified under this subheading is 5.3 percent ad
valorem.
Certain goods classified under subheading 3926.90.90, however,
may also qualify for special tariff treatment under subheading
9902.39.26. Within this subheading are classified "[t]ransparent
sheeting of plastics containing 30 percent or more by weight of
lead (provided for in subheading 3926.90.90)." Goods meeting the
article description of and properly classified under this
subheading may be entered free of duty during the year 1990. As
indicated above, Product No. 2 meets this article description and
is properly classified under subheading 9902.39.26 (i.e., the
product is a transparent sheeting of plastics containing 30 percent
or more by weight of lead and is provided for in subheading
3926.90.90). Accordingly, Product No. 2 qualifies for duty free
treatment under subheading 9902.39.26 for the year 1990.
Product No. 3
The product identified above as Product No. 3 and consisting
of sheets of acrylic plastic with drilled holes and a frame with
casters is properly classified under subheading 3926.90.9050,
HTSUSA, which provides for other articles of plastics and articles
of other materials of headings 3901 to 3914, other, other, other.
The general rate of duty for goods classified under this subheading
is 5.3 percent ad valorem.
Unless the content otherwise requires otherwise, the GRIs
apply to the provisions of chapter 99. See U.S. Note No. 2 to
chapter 99 of the HTSUSA. Product No. 3 has been classified above
as if consisting of the sheets of acrylic plastic with drilled
holes, pursuant to GRI 3(b), under subheading 3926.90.90.
Therefore, like Product No. 2, Product No. 3 meets the article
description of and is properly classified under subheading
9902.39.26. Accordingly, Product No. 3 qualifies for duty free
treatment under subheading 9902.39.26 for the year 1990.
You should inform the importer of this ruling.
Sincerely,
John Durant, Director
Commercial Rulings Division