CLA-2 OT:RR:CTF:TCM H171857 CkG
TARIFF NO: 3924.10.20
Mr. David Hull
Yumi EcoSolutions, Inc. 82 Piper’s Hill Road
Wilton, CT 06897
RE: Reconsideration of NY N136239; classification of food grade plates
Dear Mr. Hull:
This is in response to your letter of February 21, 2011, on behalf of Yumi EcoSolutions, Inc., requesting the reconsideration of New York Ruling Letter (NY) N136239, issued on January 5, 2011. In NY N136239, CBP ruled that certain food grade plates were classified in heading 3924, HTSUS, as tableware of plastic. You request classification in heading 4823, HTSUS, as an article of paper pulp.
FACTS:
NY N053357 described the merchandise as follows:
The submitted sample is identified as food grade plates, item number CP-21. These items are round disposable white plates that each measure approximately 5” in diameter and each of which has a raised rim that measures approximately ½” in height. The plates are composed of biodegradable plastic material that is derived from polymerized corn starch.
The ingredients listed in your submission include: corn starch, soybean oil, anhydride solvent, titanium pigment and glycerinmonosteareate (GMS). A sample was also sent to the CBP Laboratory of New York, which found that the plate primarily was made of a polymer of starch type plastic, soybean oil and titanium dioxide. The plate did not contain wood pulp.
ISSUE:
Whether the instant plates are classified in heading 3924, HTSUS, as tableware of plastic, or heading 4823, HTSUS, as articles of paper.
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of
Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule and any relative 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 GRIs 2 through 6 may then be applied in order.
The HTSUS provisions at issue are as follows:
3924: Tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics:
3924.10: Tableware and kitchenware:
3924.10.20: Plates, cups, saucers, soup bowls, cereal bowls, sugar bowls, creamers,
gravy boats, serving dishes and platters . . .
* * * * * *
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:
4823.70.00: Molded or pressed articles of paper pulp . . .
* * * * * *
Note 1 to Chapter 39 provides as follows:
Throughout the Nomenclature the expression “ plastics ” means those materials of headings 39.01 to 39.14 which are or have been capable, either at the moment of polymerisation or at some subsequent stage, of being formed under external influence (usually heat and pressure, if necessary with a solvent or plasticiser) by moulding, casting, extruding, rolling or other process into shapes which are retained on the removal of the external influence
* * * * * *
The Harmonized Commodity Description and Coding System Explanatory
Notes (ENs), constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. It is CBP’s practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The General EN to Chapter 39 provides, in pertinent part, as follows:
GENERAL
In general, this Chapter covers substances called polymers and semi manufactures and articles thereof, provided they are not excluded by Note 2 to the Chapter.
Polymers
Polymers consist of molecules which are characterised by the repetition of one or more types of monomer units.
Polymers may be formed by reaction between several molecules of the same or of different chemical constitution. The process by which polymers are formed is termed polymerisation.
The General EN to Chapter 48 provides, in pertinent part, as follows:
GENERAL
In the Explanatory Notes to this Chapter, except where the context otherwise requires, a reference to “ paper ” includes references to paperboard (irrespective of thickness or weight).
Paper consists essentially of the cellulosic fibres of the pulps of Chapter 47 felted together in sheet form.
* * * * * *
You claim classification in heading 4823, HTSUS, as an article of paper. However, a sample of the plate was sent to a CBP Laboratory for analysis, and was determined to have no wood pulp fiber. The laboratory determined that the plate was not made of paper, but rather a polymer of starch type plastic, soybean oil and titanium dioxide. As noted in the General EN to Chapter 48, paper must contain cellulosic fibers of Chapter 47 (which provides for pulp of wood or of other fibrous cellulosic material). As the instant plates do not contain wood fibers, they are not classifiable as articles of paper.
The laboratory report notes that the sample was composed mainly of a starch-derived plastic. The term “plastic” encompasses any organic materials subjected to a polymerization process which creates a malleable product that can be cast, pressed or extruded into a variety of shapes during manufacture. See, e.g., http://www.nobelprize.org/educational/chemistry/plastics/readmore.html.
The description of the product provided in your submission notes that the manufacturing process for this product involves “conducting polymerization reaction for blending modification and copolymerization.” The raw materials of corn starch, soybean oil, anhydride solvent, titanium pigment and GMS were polymerized in a chemical reaction that created a plastic of Chapter 39.
Furthermore, plastics do not have to be petroleum-based. Plastic can be created from a number of materials, including corn starch. See, e.g., http://www.nobelprize.org/ educational/chemistry/plastics/readmore.html (“The building blocks for making plastics are small organic molecules - molecules that contain carbon along with other substances. They generally come from oil (petroleum) or natural gas, but they can also come from other organic materials such as wood fibers, corn, or banana peels”) See also, Merriam Webster Dictionary Online at http://www.merriam-webster.com/dictionary/ plastic? show=1&t=1340372729 (“plastic: a plastic substance; specifically : any of numerous organic, synthetic or processed materials that are mostly thermoplastic or thermosetting polymers of high molecular weight and that can be made into objects, films, or filaments”). In fact, corn starch is the most common raw material for making compostable plastic. See e.g., http://www.worldcentric.org/biocompostables/bioplastics.
That the instant plates are made of biodegradable material thus does not preclude their classification as plastics of Chapter 39.
You contend that in NY N023845, dated March 12, 2008, CBP classified a substantially similar product in heading 4823, HTSUS. NY N023845 described the merchandise classified therein as follows:
You submitted one sample of a plate which measures approximately 7 inches in diameter for our examination. You state in your letter that the products are not made of plastics, but of plant fibers and starch (corn, sugar cane, potatoes, rice) with a small addition of glues and resins.
There is no indication in the facts of N023845 than any polymerization of the materials composing the plate occurred. As there is no mention of a sample having been provided of the merchandise at issue in that ruling, and no laboratory test appears to have been conducted on said merchandise, we are unable to determine whether the importer’s description of the merchandise as containing plant fibers was accurate, nor the extent of any similarity between the products at issue in NY N023845 and NY N136239.
HOLDING:
By application of GRI 1, the plates from Yumi EcoSolutions, Inc., are classified in heading 3924, HTSUS, specifically subheading 3924.10.20, HTSUS, which provides for
“Tableware, kitchenware, other household articles and hygienic or toilet articles, of
plastics: Tableware and kitchenware: Plates, cups, saucers, soup bowls, cereal bowls,
sugar bowls, creamers, gravy boats, serving dishes and platters.” The 2012 column
one, general rate of duty is 6.5 percent ad valorem.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided online at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N136239, dated January 5, 2011, is hereby affirmed.
Sincerely,
Myles B. Harmon, Director,
Commercial and Trade Facilitation Division