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HQ 084580

September 7, 1990

CLA-2 CO:R:C:G 084580 WAW


TARIFF NO.: 774.55

District Director of Customs
U.S. Customs Service
555 Battery Street
San Francisco, CA 94126

RE: Decision on Application for Further Review of Protest No. 28096-001679; Classification of Film Sheet for Food Pouch

Dear Sir:

This is a decision on an application for further review of a protest timely filed October 3, 1986, against your decision in the classification of a film sheet for a food pouch under the Tariff Schedules of the United States Annotated (TSUSA). The following is a list of the nine entries which are the subject of this protest:

Entry Entered Liquidated
138424-7 4/30/85 7/7/86
138797-2 7/2/85 7/7/86
138922-6 7/22/85 7/7/86
213689 11/15/85 7/7/86
294253-9 1/29/86 7/7/86
294279-1 2/6/86 7/7/86
294398-1 2/20/86 7/7/86
294974-9 4/23/86 7/7/86
295570-4 6/30/86 9/19/86
all of which covered shipments of plastic film sheets. Our decision follows.


The merchandise at issue consists of 16-1/2 inch metallized nylon film sheets that are designed to be used for packaging ground coffee. A laboratory analysis performed by the U.S. Customs Service indicates that the plastic sheet consists essentially of one layer of nylon and another layer of an ethylene vinyl acetate copolymer material with an aluminum coating. Based on the laboratory analysis, the sheets do not contain any evidence of magnetic ink markings which are designed to trigger the cutting and wrapping process. The plastic film sheets are manufactured in Japan.

At the time of entry of the goods, your office classified the plastic film sheets in item 774.55, TSUS, which provides for articles not specially provided for, of rubber or plastics: Other: Other. The protestant, however, maintains that the flexible film material is used for packaging ground coffee for Brewpak MJB on vertical form and fill (VFF) packaging equipment. The protestant states that the film is manufactured by packaging eqipment which cuts, folds, and seals the plastic sheets into plastic containers. The protestant contends that magnetic ink marks or "eyespots" on the sheets can trigger the cutting mechanism on the packaging equipment. According to the protestant, the MJB packages do not require the eyespots and the film in its imported condition is not printed with an eyespot. Thus, the protestant maintains that the plastic film sheets are essentially plastic containers in their unassembled or unfinished state and should be classified in the provision for containers, of rubber or plastics, with or without their closures, chiefly used for the packing, transporting, or marketing of the merchandise in item 772.20, TSUS.


Whether the merchandise is properly classified as containers of plastics, with or without their closures, chiefly used for the packing, transporting, or marketing or merchandise in item 772.20, TSUS, or rather as other articles not speciallly provided for, of rubber or plastics in item 774.55, TSUS.


In Sanwa Foods, Inc., v. United States, 9 CIT 167 (1985), the Court of International Trade set forth certain criteria which must be met in evaluating a classification claim under TSUS item 772.20. In this case, the subject merchandise consisted of rolls of unassembled plastic packaging for various noodle mixes produced by the plaintiff. Printed on each roll at regular intervals were the trademarked product brand name, product descriptions, preparations instructions, and magnetic black ink marks. The ink marks were read by an electric eye, which triggered a mechanism that cut, folded, and sealed the plastic around various noodle mixes in accordance with the location of the marks. Since the merchandise in its imported condition was incapable of "containing" anything, the Court was faced with the question of whether the merchandise qualified as an unassembled or unfinished "article" for the purposes of item 772.20, TSUS. General Interpretative Rule 10(h), TSUS states:

(h) unless the context requires otherwise, a tariff description for an article covers such article, whether assembled or not assembled, and whether finished or not finished (Emphasis added.)

The Court determined that the merchandise met the definition of an unfinished "article" since first, the merchandise was not commercially capable of any use other than packaging and second, the merchandise was marked at regular intervals for the purposes of cutting, folding, and sealing the plastic around various noodle mixes. The court stated that the magnetic black ink marks on the plastic at regular intervals was indicative, if not solely determinative of classification as an "article" in prior cases. See e.g. United States v. The Harding Co., 21 CCPA 307, T.D. 46830 (1933); The Harding Co., et al. v. United States, 23 CCPA 250, T.D. 48109 (1936).

Next, the court considered whether the merchandise met the criteria for "containers" for the purposes of TSUS item 722.20. The court determined that the plastic packages fit the definition of a "container" since the merchandise was "chiefly used for the packaging, transporting, or marketing of merchandise." Consequently, the court stated that since an article which packages various products for shipment before the point of sale, protects them during transportation, and serves a marketing function at the retail stage is properly classified under TSUS item 772.20.

In the instant case, however, it is clear that the sample merchandise does not meet the first requirement for purposes of classification in TSUS item 772.20. Although the merchandise is not commercially capable of use for anything other than packaging, it is not sufficiently advanced toward completion of the finished product to justify its categorization as an "article" for the purposes of item 722.20, since it is not marked with magnetic black ink marks on the plastic. Thus, the merchandise fails to meet the criteria for an "article" as discussed above and is precluded from classification under item 772.20, TSUS. Consequently, it is Customs determination that the merchandise is more properly classified under TSUS item 774.55.


Based on the foregoing analysis, it is our determination that the sample film sheets do not constitue containers of plastic under item 772.20, TSUS, and that the merchandise is more properly classified as articles not specifically provided for, of rubber or plastics: Other: Other under item 774.55, TSUS. Articles classified under item 774.55, TSUS, are subject to a rate of duty of 5.7 percent ad valorem.

The protest should be denied. A copy of this decision should be attached to the Form 19 Notice of Action to be sent to the protestant.


John Durant, Director

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