HQ 087759: Revocation of Headquarters Ruling Letter 085524; Printed polypropylene film; Printed matter; Merely incidental to the primary use of the goods; Note 2 to Section VII, HTSUSA; Packing container; Plastic sheet.

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                             HQ 087759

                         December 24, 1990

   CLA-2 CO:R:C:G 087759 KWM

   CATEGORY: Classification

   TARIFF NO.: 3920.20.0000

   Mr. Young H. Lee
   Union Incorporated
   320 Kalmus Drive
   Costa Mesa, California  92626

   RE:  Revocation of Headquarters Ruling Letter 085524; Printed
        polypropylene film; Printed matter; Merely incidental to
        the primary use of the goods; Note 2 to Section VII,
        HTSUSA; Packing container; Plastic sheet.

   Dear Mr. Lee:

        On December 28, 1989, this office issued to you a tariff
   classification under the Harmonized Tariff Schedule of the
   United States Annotated (HTSUSA) for certain printed
   polypropylene film imported from South Korea and used as
   packaging material for ramen noodles.  Since that ruling was
   issued, we have reconsidered our position regarding the
   classification of printed polypropylene film and have
   determined that Headquarters Ruling Letter (HRL) 085524 is
   incorrect.  Therefore, we are hereby revoking that ruling
   letter and re-classifying the merchandise as explained below.

   FACTS:

        HRL 085524 describes the subject merchandise as follows:

             The instant merchandise is imported in the form of
        printed polypropylene film in roll form, approximately 6-
        7/8 inches in width.  The film is printed with product
        information such as instructions for making the ramen
        noodles, menu suggestions, the name of the product
        ("Smack Ramen Oriental Noodle Soup"), the net weight and
        the ingredients.  The film has magnetic ink marks which
        can be read by an electric eye to trigger a mechanism to
        cut the film to the desired length.

             After importation, the printed polypropylene is cut
        into lengths and used to package ramen noodles.
   In your request for a binding ruling, you suggest that the
   goods be classified under heading 3923, HTSUSA, as articles
   for the packing and conveyance of goods.  HRL 085524 held that
   the goods were not "containers" of heading 3923, HTSUSA, but
   were classified in heading 4911, HTSUSA, as printed matter.
   In the alternative, if the goods were imported without
   printing, they would be classified in heading 3920, HTSUSA, as
   plastic film of polymers of propylene.  That holding was based
   on a finding that the printing on the plastic film was "not

   merely incidental to the primary use of the goods" as
   indicated by Note 2 to Section VII, HTSUSA.

   ISSUE:

        Are the goods classified under heading 4911, HTSUSA, as
   other printed material?

        If not, how are the goods classified?

   LAW AND ANALYSIS:

        Classification under the Harmonized Tariff Schedule of
   the United States Annotated (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.

        The central question here is whether or not the printing
   found on the polypropylene film is "merely incidental" to the
   primary use of the goods, as indicated by Note 2 to Section
   VII, HTSUSA.  Contrary to the findings in HRL 085524, we now
   believe that it is.  There is no question that the primary use
   of the film in this case is as a wrapper for ramen noodle
   preparations.  In deciding whether or not the printing is
   merely incidental, we look to the Explanatory Notes, which
   constitute the official interpretation of the tariff schedule
   at the international level.  The Explanatory Notes to Chapter
   49, HTSUSA, provide in pertinent part that articles "of which
   the essential nature and use is determined by the fact of its
   being printed with motifs, characters or pictorial
   representations" are classified as printed matter.

        In HRL 085524, this office expressed the opinion that the
   instructions and illustrations were more than merely
   incidental to the film's use as a wrapper.  However, its
   essential nature is not determined by the printing.  The
   Explanatory Notes anticipate and we have held that articles
   such as seed packets, record sleeves, and other articles
   "printed, e.g., with the name of the merchant, directions for
   use, illustrations" are not printed matter.  The information
   conveyed by the printing here is comparable to that on seed
   packets or other articles; it is clearly described as
   "directions for use" and "illustrations."  The printing here
   is not more than merely incidental to the primary use of the
   goods.

        Having excluded the goods from coverage under Chapter 49,
   HTSUSA, we are faced with the other finding of HRL 085524:
   whether or not the terms of heading 3923 or 3920, HTSUSA apply
   to these goods.  We believe this portion of HRL 085524 to be
   essentially correct:

        [The importer] argues that the printed polypropylene film
        should be classified under the provision for articles for
        the conveyance or packing of goods, of plastics, other,
        in subheading 3923.90.00, HTSUSA.  We observe that, in
        its imported form, the instant merchandise is incapable
        of "containing," as it consists of rolls of continuous
        lengths of plastic printed film.

   Further, the Explanatory Notes contain a diversity of
   exemplars, including boxes, bags and sacks, yet significantly
   do not mention food wrap or plastic wrap such as this.  We do
   not consider the polypropylene film to be ejusdem generis to
   the terms of heading 3923, HTSUSA.  The goods of that heading,
   and the Explanatory Note exemplars, are all of the type used
   for shipping of goods in the stream of commerce, generally at
   the wholesale level, rather than the packaging found on
   individual items marketed for retail transactions.  Lastly,
   the instant goods are not "articles", but rather a component
   material for the manufacture of packaging.

        The terms of heading 3920, HTSUSA, provide for plates,
   sheets and film of non-cellular plastics.  The Explanatory
   Notes indicate that goods of this heading may be printed.  We
   are of the opinion that this heading provides for the instant
   goods.  This finding is substantiated by a comparison of
   heading 3920, HTSUSA, to heading 3923, HTSUSA.  Assuming,
   arguendo, that both headings described the goods, we would
   consider heading 3920, HTSUSA, to be the more specific
   description according to GRI 3(a).

   HOLDING:

        HRL 085524 is hereby revoked.  The instant goods, printed
   polypropylene film imported in rolls, is classified by
   application of GRI 1 in subheading 3920.20.0000, HTSUSA, as
   other film of non-cellular plastics, of polymers of propylene.

   The applicable rate of duty is 4.2 percent ad valorem.

        For the purposes of future transactions in this
   merchandise, HRL 085524 will not be valid precedent.  We
   recognize that pending transactions may be adversely affected
   by this revocation in that current contracts for importation
   arriving at a port subsequent to the release of this
   revocation may be classified under the modified ruling.  If
   such a situation arises, you may, at your discretion and
   pursuant to section 177.9 of the Code of Federal Regulations,
   notify this office and apply for relief from the binding
   affect of the new ruling as may be dictated by the
   circumstances.

                                      Sincerely,

                                      John A. Durant
                                      Director
                                      Commercial Rulings Division