CLA-2 RR:CR:TE 964223
Mr. C.J. Erickson
Hodgson Russ
152 West 57 Street
New York, NY 10019
RE: Reconsideration of New York Ruling (NY) F80680; Classification of Armaflex Melamine Edgebanding: Subheading 3921.90, HTSUSA; Subheading 4811.51.2050, HTSUSA; Subheading 4811.51.6000, HTSUSA.
Dear Mr. Erickson:
This ruling is in response to letters dated June 1, 2000, April 3, 2001, and September 28, 2001, requesting reconsideration of New York Ruling Letter (NY) F80680, dated January 4, 2000, concerning the tariff classification of Armaflex melamine edgebanding under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), issued to PM Plastic Technologies, Inc., hereafter referred to as PM. In that ruling, the edgebanding was classified under subheading 3921.90.4010, HTSUSA, which provides for other plates, sheets, film, foil and strip, of plastics, other: flexible, reinforced with paper, dutiable at 4.2 percent ad valorem.
You state that the edgebanding is nothing more than a resin pre-impregnated paper. You request that the edgebanding be reclassified in either subheading 4811.29.0000, HTSUSA, as gummed or adhesive paper, other than pressure-sensitive, or in subheading 4811.39.4040, HTSUSA, as other paper and paperboard, coated, impregnated or covered with plastics. Two samples of the edgebanding were submitted to Headquarters for review.
You also advised us that PM filed a number of protests on the same merchandise in the Ports of New York, JFK, and Newark. It is our understanding that these protests have been suspended pending a decision on this request for reconsideration.
FACTS:
Two sheets of material were submitted with the June 1, 2000, request for reconsideration. One was identified as Armaflex base paper white, i.e., the paper before impregnation, and the other as Armaflex finished product white, i.e., the
paper after impregnation. PM's request for reconsideration contains a weight, cost, and thickness analysis of the merchandise. In the original request for a ruling we were advised that the sample is a paper-based tape approximately 0.35 mm thick; that it will be imported in rolls of approximately 16 mm to 190 cm wide and approximately 450 m long; and that the tape is used for covering the edges of chip-board or MDF panels primarily in the production of ready to assemble furniture and cabinetry.
We note that the samples submitted with the request for reconsideration are not the same as those submitted with the original request. The original sample had a wood grain appearance. The samples before us, on which you now seek a binding ruling, are white, and coated on both sides with plastics material. You indicate that the original sample was constructed similarly to the white sample, with the addition of a texturing step (which added an ink design by means of a rotogravure press). A second sample submitted with the original ruling request was coated with a hot melt adhesive. You also advise, in a follow-up correspondence dated April 4, 2002, that this request as well as the protests currently suspended in the ports of New York and New Jersey involve only the white coated paper sample submitted with this request.
ISSUE:
Whether the edgebanding is plastic reinforced with paper or paper coated with plastics?
LAW AND ANALYSIS:
Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI's). The systematic detail of the harmonized system is such that virtually all goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relevant Section or Chapter Notes. In the event that 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's may be applied.
It is claimed that the edgebanding is either classifiable under subheading 4811.29.0000, HTSUSA, which provides for certain gummed or adhesive paper, other than pressure-sensitive, or in subheading 4811.39.4040, HTSUSA, as other (than certain enumerated) paper and paperboard, coated, impregnated or covered
with plastics (excluding adhesives). Customs determined in NY F80680 that the edgebanding was classifiable under subheading 3921.90.4010, HTSUSA, which
provides for other plates, sheets, film, foil and strip of plastics, other: other: flexible, reinforced with paper.
Since both of the samples submitted with PM's request for reconsideration appeared to incorporate a plastic component, they were sent to the New York laboratory for analysis. Both were determined to be paper coated on both sides
with plastics. The sheet identified as the base paper weighs 315.6 grams per square meter, with a thickness of .290 mm paper and .050 mm plastic, for a total of .340 mm thickness. The product is 74 percent by weight paper and 26 percent by weight plastic. Analysis on the sheet identified as the Armaflex finished product showed a weight of 318.8 grams per square meter, with a thickness of .290 mm paper and .050 mm plastic, for a total of .340 mm thickness. The sheet was 75.1 percent by weight paper and 24.9 percent plastic. Noting the similarity of the results, it is unlikely that the samples were properly identified. It is believed that both samples submitted with the June request represent the product in the condition as imported. Two additional samples were submitted with your September 28, 2001, correspondence. One was identified as "un-impregnated, 199 grams m2" the other as "impregnated, 304 grams m2".
Chapter Note 2(g) of Chapter 48, HTSUSA, states that "(t)his chapter does not cover...paper-reinforced stratified sheeting of plastics, or one layer of paper or paperboard coated or covered with a layer of plastics, the latter constituting more than half the total thickness, or articles of such materials...."
The General Explanatory Notes to Chapter 39, contain a section which addresses combinations of plastics and materials other than textiles. It states, in relevant part, that:
This Chapter also covers the following products, whether they have been obtained by a single operation or by a number of successive operations provided they retain the essential character of articles of plastics:
* * * *
(b) Plates, sheets, etc., of plastics separated by a layer of another material such as metal foil, paper, paperboard.
Products consisting of paper or paperboard covered with a thin protective sheet of plastics on both faces are excluded from this Chapter
provided they retain the essential character of paper or paperboard (generally heading 48.11).
(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. (If having more the character of paper or of articles of glass fibres they are classifiable in Chapter 48 or 70, as the case may be.)
Subsequent to the request for reconsideration, in a telephone conversation with the National Commodity Specialist Division, in New York, the manufacturing process in producing the edgebanding was described as follows: "A single layer of paper is placed in a bath of acrylic resins so that the plastics material impregnates
the paper fibers. The sheet is then dried out using heat. Next, the surface is coated with a protective lacquer coating."
We note that at the time NY F80680 was issued we had no information as to weight, cost or thickness of the components of the edgebanding. Nor did we have any information as to the manufacturing process of the product. It was Customs understanding that the edgebanding was made from several layers of paper impregnated with resin and compressed together, similar to the construction described in Explanatory Note (d) to Chapter 39. Therefore the Armaflex melamine was classified under subheading 3921.90.4020, HTSUSA, which provides for other plates, sheets, film, foil and strip of plastics, other: flexible, reinforced with paper.
In reviewing the information and description of the manufacturing process submitted by PM subsequent to the issuance of NY F80680, as well as our subsequent laboratory analysis of the samples submitted with the reconsideration request, we have learned that the construction of the edgebanding was not similar to that described in EN (d) to Chapter 39. In addition, you admit that "(a) weight analysis of the "Armaflex" edgebanding was submitted to Customs subsequent to the issuance of NY Ruling F80680 and, accordingly, was not considered in reaching the classification decision." You go on to argue that both the weight and thickness needed to be considered in order to properly classify the merchandise. We agree, however, this information was not before us at the time. We therefore find that NY F80680 is correct based on the information provided to Customs at the time the classification ruling was requested. It will, therefore, not be revoked nor amended.
It is our view that based on your description, the two components (the paperboard and plastic) form an inseparable whole, and the item is therefore a composite good. GRI 1 alone is not determinative of the article's classification because the edgebanding potentially falls under two headings: heading 3921, HTSUSA, which provides for other plates, sheets, film, foil and strip, of plastics, other, reinforced with paper, or heading 4811, HTSUSA, which encompasses paper and paperboard, coated, impregnated or covered with plastics.
Under GRI 2, HTSUSA, any reference to a material or an article made of a material includes goods made wholly or in part of that material. GRI 2(b), HTSUSA, provides in pertinent part that "[t]he classification of goods consisting of more than one material or substance shall be according to the principles of GRI 3."
GRI 3, HTSUSA, provides in pertinent part:
When, by application of Rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or
substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.
(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
In understanding the language of the HTSUSA, 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 HTSUSA. See, T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN VIII to GRI 3(b), pg. 4, provides an interpretation of the term “essential character” stating that:
The 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 by the role of a constituent material in relation to the use of the goods.
The laboratory analysis of the sample submitted with your request for reconsideration confirms that the paper predominates by weight and thickness. The
cost figures submitted indicate that the paper predominates by value as well. Other factors to be considered in determining the essential character include the
role of each constituent material. You advised that the main function of the plastic covering is to give the product the consistency necessary so that it can be cut by a router. We note that the plastic also gives the edgebanding a protective surface, making it less porous and easier to clean. In addition, we note that the impregnated material is somewhat less flexible and breaks more easily when manipulated than the un-impregnated sample.
Based on the above, we are of the opinion that no single component of the edgebanding imparts the essential character to the edgebanding. None of the factors, either as a group or individually, substantiates a finding of essential character of paperboard or of plastics. Although paperboard is predominant by weight and by bulk, it is the plastic portion which distinguishes this article from ordinary paperboard.
When, as in the instant case, the component which gives the goods at issue their essential character cannot be determined, classification is ascertained by utilizing GRI 3(c).
GRI 3(c) provides:
(c) When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.
In this case, the heading which occurs last in numerical order is 4811, HTSUS. Accordingly, the edgebanding, as described above, where imported in widths of more than 15 cm, is properly classifiable under subheading 4811.51.2050, HTSUSA. Where imported in widths of less than 15 cm, the edgebanding is classifiable under subheading 4811.51.6000, HTSUSA.
HOLDING:
The edgebanding, as described above, where imported in widths of more than 15 cm, is properly classifiable under subheading 4811.51.2050, HTSUSA, which provides for "Paper and paperboard, coated, impregnated, or covered with
plastics (excluding adhesives): Bleached, weighing more than 150 g/m2: In strips or rolls of a width exceeding 15 cm or in rectangular (including square) sheets with one side exceeding 36 cm and the other side exceeding 15 cm in the unfolded state: 0.3 mm or more in thickness; Other: Other: Other. The general column one rate of duty is free.
The edgebanding, where imported in widths of less than 15 cm, is properly classifiable under subheading 4811.51.6000, HTSUSA, which provides for "Paper and paperboard, coated, impregnated, or covered with plastics (excluding adhesives): Bleached, weighing more than 150 g/m2: Other. The general column one rate of duty is 1.1 percent ad valorem.
NY F80680 is correct based on the information provided to Customs at the time the classification ruling was requested. It is therefore neither revoked nor amended. A copy of this decision as well as NY F80680 should be presented to Customs upon entry of the edgebanding.
On December 8, 1993, Title VI, (Customs Modernization), of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), (hereinafter “Title VI”), became effective. Title VI amended many sections of the Tariff Act of 1930, as amended, and related laws. Two new concepts which emerged from the law are “informed compliance” and “shared responsibility.” For example, under section 484 of the Tariff Act of 1930, as amended, (19 U.S.C. §1484) the importer of record is responsible for using reasonable care to enter, classify and value imported merchandise, and provide any other information necessary to enable Customs to properly assess duties, collect accurate statistics and determine whether any other applicable legal requirement is met. This includes the importer’s responsibility of advising Customs of any and all substantially same or identical transactions, or same issues, which have previously been considered. Providing such information is the importers’ part of the reasonable care and shared responsibility equation.
In order for an accurate classification determination to be made, the onus is on the party seeking a ruling to provide all necessary information including whether the same transaction or identical transaction, or same issues were previously considered. Where as in ruling NY F80680, the ruling issued is correct to the extent
that the necessary information was provided by the importer, it will not be revoked or amended.
Reasonable care is an explicit responsibility on the part of the importer and is exercised by following the suggestions and protocols promulgated by the Customs Service in its publications, which include not only the various informed compliance publications available on Customs Web site (www.customs. treas. gov), but also
include Customs rulings, Customs Regulations, Court decisions and statutory provisions. Please be advised that if Customs believes that reasonable care was
not exercised a penalty action may be initiated under the appropriate regulatory or statutory provisions against the person believed to be the culpable party involved in the import transaction.
Sincerely,
John Durant, Director
Commercial Rulings Division