OT:RR:CTF:CPMM H287719 WMW
Patricia Sanders Duffy, President
P.S. Customs Brokerage, Inc.
829 Fairways Court, Suite 110
Stockbridge, Georgia 30281
RE: Request for a binding ruling on the classification of Biodegradable Paper Cups and Trays
Dear Ms. Duffy:
This is a response to your request, dated March 10, 2017, submitted on behalf of Riji International. (“Riji”), to Customs and Border Protection (CBP), for a binding ruling on the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of biodegradable paper cups and trays. Your request was forwarded to this office for review. We regret the delay.
FACTS:
The instant merchandise is a biodegradable tray and biodegradable cup. The tray is rectangular in shape and measures approximately 6.5” long by 5” wide by 2” high. The tray is advertised as being able to withstand the high heat for the rapid service of customers. The cup measures approximately 3” high and 4” in diameter at the opening. Both the tray and the cup are manufactured in Thailand or China from bamboo, wheat straw, sugar cane (bagasse) fibers, or a combination of these fibers. An FDA-approved “sizing agent” is added to the fibers to bind it; the agent is also used to coat the tray and cup. Riji does not identify the sizing agent in its composition, but states that it does not exceed 7 percent of the weight of the containers.
ISSUES:
Whether the instant merchandise is classifiable as of paper of subheading 4823.69, HTSUS or as molded or pressed articles of paper pulp of subheading 4823.70, HTSUS.
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (“GRIs”). 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 may then be applied. Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level.
The HTSUS provisions at issue are as follows:
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:
Trays, dishes, plates, cups and the like, of paper or paperboard:
4823.69.00 Other
4823.69.0020 Cups and round nested food containers
4823.69.0040 Other
4823.70.00 Molded or pressed articles of paper pulp
4823.70.0020 Plates, bowls or cups
4823.70.0040 Other
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 consult, 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 ENs to chapter 48 describes “paper” as, “Paper consists essentially of the cellulosic fibres of the pulps of chapter 47 felted together in sheet form.” EN 48.23 states, in relevant part, that this heading covers: (4) Trays, dishes, plates, cups and the like, of paper or paperboard.
The general ENs to chapter 47 identifies pulps as “cellulose fibres obtained from various vegetable materials, or from waste textiles of vegetable origin.” Wood pulp is referenced in the ENs as the most common pulp, but identifies straw, esparto, flax, ramie, jute, hemp, sisal, bagasse, bamboo and various other grasses and reeds being used to make pulp.
You argue that the merchandise is formed from bagasse, bamboo, or wheat straw fibres or a combination of these. Pulp of these materials made into paper trays or cups formed from combinations of bamboo, bagasse or wheat straw fibres are classifiable subheading 4823.69, HTSUS. Unlike the merchandise in New York Ruling Letter (NY) N049499, dated February 12, 2009, it does not appear that the instant merchandise is pressed or molded from paper pulp. Rather, the articles appear to have been formed from paper.
HOLDING:
By application of GRI 1, the biodegrable cups are classified in heading 4823, HTSUS, specifically subheading 4823.69.0020, HTSUSA (Annotated), which provides 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: Trays, dishes, plates, cups and the like, of paper or paperboard: Other: Cups and round nested food containers.” The 2018 column one, general rate of duty is free.
By application of GRI 1, the biodegrable trays are classified in heading 4823, HTSUS, specifically subheading 4823.69.0040, HTSUSA (Annotated), which provides 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: Trays, dishes, plates, cups and the like, of paper or paperboard: Other: Other.” The 2018 column one, general rate of duty is free.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel and to the public on the Customs Rulings Online Search System (“CROSS”), at https://rulings.cbp.gov/, and other methods of public distribution.
Sincerely,
Allyson Mattanah for
Myles B. Harmon, Director
Commercial and Trade Facilitation Division