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HQ 964944

February 8, 2002

CLA-2 RR:CR:GC 964944 AM


TARIFF NO.: 3905.91.10

Area Port Director
U.S. Customs Service
17117 East Loop
Houston, TX 77029

RE: Mater-Bi (material-biodegradable) starch pellets for dog chew bones

Dear Port Director:

The following is our decision regarding your memorandum (CLA-2: HO:TC), dated January 31, 2001, forwarding a request for internal advice initiated by letter dated January 17, 2001, by counsel on behalf of B & R Plastics, Inc., which seeks classification of starch pellets, used in the production of dog chew bones, under the Harmonized Tariff Schedule of the United States (HTSUS). In preparing this ruling, consideration was also given to information provided by counsel in a letter dated March 21, 2001.


Mater-Bi A106H and A107H are whitish pellets containing approximately 60% corn starch, 20% glycerin and sorbitol plasticizers and 20% vinyl alcohol copolymer. The vinyl alcohol copolymer (EVOH) in the Mater-Bi grade consists of 28% by weight ethylene and 72% by weight vinyl alcohol. After importation, the pellets are melted, mixed with flavors and colors, and molded, through an injection-molding process, into dog chew bones. Counsel states that there is no commercially viable use for these particular pellets other than the production of digestible dog chew bones.

Cornstarch “has been proposed as an additive to plastics to promote rapid degradation in such products as bottles and waste containers.” Hawley’s Condensed Chemical Dictionary, Richard J. Lewis, Sr., 12th ed. (Von Nostrand Reinhold Co.; New York, 1993. p. 317). Hawley’s also lists sorbitol and glycerin as plasticizers. Hawley’s, supra pp. 567 and 1077.

In New York Ruling (NY) 858382, dated March 18, 1991, Mater-Bi starch pellets of 60% starch and 40% synthetic resins used as biodegradable plastics in films, bags and other products, were classified in subheading 3913.90.20, HTSUS, as an “ other modified natural polymer not elsewhere specified, in primary form.” In New York Ruling (NY) 898744, dated July 11, 1994, dog chew bones composed of Mater-Bi material were classified in subheading 9602.00.40, HTSUS, as “other molded or carved articles.” The ruling explicitly rejected the claim that the dog chew bones are classifiable in heading 2309, HTSUS, as “prepared animal feed.”


What is the classification of Mater-Bi starch pellets used in the production of dog chew bones?


Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.

GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs.

In understanding the language of the HTSUS, 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 HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).

The HTSUS headings under consideration are as follows:

1108 Starches; inulin:

Preparations of a kind used in animal feeding:

3905 Polymers of vinyl acetate or of other vinyl esters, in primary forms; other vinyl polymers in primary forms:

The ENs to heading 23.09, HTSUS, state, in pertinent part, as follows: “This heading covers sweetened forage and prepared animal feeding stuffs consisting of a mixture of several nutrients. . . .”

The legal notes to chapter 39 state, in pertinent part, as follows:

Throughout the tariff schedule the expression “plastics” means those materials of headings 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.”

In headings 3901 to 3914, the expression "primary forms" applies only to the following forms: . . . .

(b) Blocks of irregular shape, lumps, powders (including molding powders), granules, flakes and similar bulk forms.

The ENs to chapter 39, HTSUS, state, in pertinent part, as follows:

Primary forms

Headings 39.01 to 39.14 cover goods in primary forms only. The expression “ primary forms ” is defined in Note 6 to this Chapter. It applies only to the following forms :

(2)Powder, granules and flakes. In these forms they are employed for moulding, for the manufacture of varnishes, glues, etc. and as thickeners, flocculants, etc. They may consist of the unplasticised materials which become plastic in the moulding and curing process, or of materials to which plasticisers have been added; these materials may incorporate fillers (e.g., wood flour, cellulose, textile fibres, mineral substances, starches), colouring matter or other substances cited in Item (1) above. Powders may be used, for example, to coat objects by the application of heat with or without static electricity. (emphasis added).

(3)Blocks of irregular shape, lumps and similar bulk forms, whether or not containing fillers, colouring matter or other substances cited in Item (1) above. Blocks of regular geometric shape are not primary forms and are covered by the expression “ plates, sheets, film, foil and strip ” (see Note 10 to this Chapter). (emphasis added).

Counsel states that the instant starch pellets cannot be classified “solely on the basis of GRI 1” because the pellets consist of a mixture of ingredients with starch, of heading 1108, HTSUS, providing for the “essential character” of the product under GRI 3(b). Counsel is correct that the only way to consider heading 1108, HTSUS, is to compare headings which describe part only of the good. However, this method is unnecessary because the two other headings under consideration can both be reached, if at all, at GRI 1. Hence, heading 1108, HTSUS, which describes part only of the good, cannot be considered.

Heading 2309 is a “use provision.” See HQ 964600, dated June 21, 2001. "A tariff classification controlled by use is determined in accordance with the principal use of the class or kind of goods to which the imported goods belong.” HTSUS, Additional U.S. Rules of Interpretation 1(a). In Group Italglass U.S.A., v. United States, 17 C.I.T. 1177, 839 F. Supp. 866 (1993), the court stresses that it is the principal use of the class or kind of goods to which the imports belong and not the principal use of the specific imports that is controlling under the Rules of Interpretation. Id. at 868.

Starch pellets belong to the class or kind of goods known as biodegradable plastics. See NY 858382 and NY 898744, supra. Even though the specific import is used solely in the production of dog chew bones, the instant pellets do not belong to the class or kind of goods principally used in animal feed, such as “sweetened forage or prepared feeding stuffs.” Furthermore, only one of the ingredients in the pellets, corn starch, arguably has any nutritive value. The pellets cannot therefore be described as a “mixture of nutrients” (emphasis added). Hence, the terms of heading 2309, HTSUS, do not describe this product.

Lastly, the instant pellets are a material, consisting of plastic, plasticizer and a starch filler that promotes degradation of the plastic, defined at GRI 1 in chapter 39. Chapter 39, note 1 allows for the addition of glycerol and sorbitol plasticizers to a basic plastic product without resorting to analysis of a product as a composite good under GRI 3. Additionally, the ENs to Chapter 39 specifically describe starch as a "filler" in plastics and allow for fillers in "bulk forms" such as the instant pellets. Hence, a plastic material may contain plasticizer and starch filler and remain classified in heading 3905, HTSUS, at GRI 1 under the relevant chapter notes and ENs. The instant merchandise is so classified.

Our determination is consistent with Harmonized System Committee's classification of similar merchandise, called Mater-Bi ATO5H. See Opinion No. 3905.91 of the World Customs Organization (“WCO”) Compendium of Classification Opinions, Amending Supplement No. 26 (June 2000). Decisions in the Compendium of Classification Opinions should be treated in the same manner as the EN’s, i.e., while neither legally binding nor dispositive, they provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. EN’s and decisions in the Compendium of Classification Opinions “should receive considerable weight.” T.D. 89-80


With 72% vinyl alcohol content by weight, the Mater-Bi A106H and A107H are classified in subheading 3905.91.10, HTSUS, the provision for "[P]olymers of vinyl acetate or of other vinyl esters, in primary forms; other vinyl polymers in primary forms: [O]ther: [C]opolymers containing by weight 50 percent or more of derivatives of vinyl acetate.”

You are directed to mail this decision to the internal advice applicant, no later than 60 days from the date of this letter. On that date the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other public methods of distribution.


John Durant, Director
Commercial Rulings Division

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