HQ 087058: Reconsideration of Headquarters Ruling Letter 082675; Affirmed; Sausage casings; Fibrous sausage casings; Cellulosic plastic; Tubes, pipes, hoses and fittings; Artificial guts; Paper; Articles of paper.

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 087058



                         November 13, 1991

   CLA-2 CO:R:C:T 087058 KWM

   CATEGORY: Classification

   TARIFF NO.: 3917.10.10


   Mr. David O. Elliott
   Barnes, Richardson & Colburn
   475 Park Avenue South
   New York, New York  10016

   RE:  Reconsideration of Headquarters Ruling Letter 082675;
        Affirmed; Sausage casings; Fibrous sausage casings;
        Cellulosic plastic; Tubes, pipes, hoses and fittings;
        Artificial guts; Paper; Articles of paper.

   Dear Mr. Elliott:

        This letter is in response to your request that we
   reconsider our decision in Headquarters Ruling Letter (HRL)
   082675.  After careful consideration, we find that HRL 082675
   should not be revoked or modified.

   FACTS:

   History

        By letter dated August 15, 1988, you requested a
   classification ruling under the Harmonized Tariff Schedule of
   the United States (HTSUSA) for "certain fibrous sausage
   casings."  Your request was made on behalf of two domestic
   importers of such products, Brechteen Company (Brechteen) and
   Vista International Packaging Co. (Vista).  In a follow-up
   letter dated November 15, 1988, you provided additional
   information and samples of the merchandise.  As summarized in
   the November 15th correspondence, your position at that time
   was that "fibrous sausage casings are properly classifiable
   either under HTS 3917.10.50 or alternatively under HTS
   4823.90.85."  You argued several points in support of your
   position, emphasizing that the essential character of the
   fibrous sausage casings was imparted by the paper constituent.

        In HRL 082675, dated January 6, 1989, Customs held that
   the sausage casings at issue were classified in subheading
   3917.10.10, HTSUSA, contrary to your position.  Our ruling was
   based on a finding that the essential character of the sausage
   casings was imparted by the cellulosic plastics material.

        On January 26, 1989, you requested reconsideration of HRL
   082675, asserting several grounds for revoking that decision.
   At that time Customs requested that you provide additional
   information regarding the product at issue.  The file was
   later closed administratively, without response.

        By letter dated April 20, 1990, you renewed your request

   for reconsideration, providing the information request by
   Customs.  Another meeting was held to discuss Customs' prior
   rulings.

   Merchandise

        Your submission of August 15, 1988, states that the
   casings are made of paper, regenerated cellulose and glycerin,
   in the relative quantities described in prior Customs Service
   ruling letters (See, HRLs 061462 and 073604).  Although a
   precise description of the manufacturing process was not
   provided, we presume that it is similar to those described in
   prior rulings.  Essentially, the process consists of creating
   a viscose solution through chemical means, and then extruding
   the viscose solution onto a continuous paper tube.  A tube is
   formed by twisting a long strip of paper fed through the
   center of the extruder.  The viscose coated/covered paper tube
   passes through a series of acid baths wherein the cellulose
   regenerates and the casing solidifies.  Purifying baths remove
   the acid and other materials.  Lastly, the casings are bathed
   in glycerin.  The two principal components of the completed
   casings are the paper and the regenerated cellulosic plastics.

   ISSUE:

        Is Headquarters Ruling Letter 082675 correct in
   classifying the merchandise classified in heading 3917,
   HTSUSA?

        If not, how should the merchandise be classified for
   tariff purposes?  Specifically, is the merchandise
   classifiable under heading 4823, HTSUSA?

   LAW AND ANALYSIS:

        Your letter of January 26, 1989, lists several reasons
   you believe warrant our reconsideration of HRL 082675.  Please
   be assured that we have considered all arguments made in
   behalf of Brechteen and Vista, in both the original and
   reconsideration request.  Your reasoning is twofold:  First,
   you argue in the August 15, 1988 letter that the TSUS-to-
   HTSUSA cross reference leads to subheading 3917.10.50, HTSUSA,
   based on the classification of identical merchandise under the
   TSUS.  The cross reference to which you refer is not a legally
   binding document, nor was it intended to provide a direct
   correlation between TSUS and HTSUSA headings for
   classification purposes.  We do not consider the cross
   reference indicative of any classification under the HTSUSA.

        Second, you assert that GRI 3 is applicable to this
   merchandise and that the essential character of the fibrous
   sausage casings is imparted by the paper component.  Your
   later correspondence emphasizes the essential character
   analysis, and it was on that basis that we issued HRL 082675.
   In your letter dated January 26, 1989, you again emphasize the
   essential character analysis.  Therefore, we have considered
   below your assertion that the essential character of the
   sausage casing is imparted by the paper component.

        As you know, 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.  Before we
   resort to GRI 3 for the classification of this merchandise, we
   must first apply GRI's 1 and 2.

        Neither the importer or Customs disputes that the
   regenerated cellulose material is considered a plastic under
   the HTSUSA.  Heading 3917, HTSUSA, provides for:

        3917      Tubes, pipes and hoses and fittings therefor
                  (for example joints, elbows, flanges) of
                  plastics:
        3917.10        Artificial guts (sausage casings) of
                       hardened protein or of cellulosic plastics
                       materials:
        3917.10.50          Of cellulosic plastics materials:

   We find no general exclusion from Chapter 39, HTSUSA, which
   would apply to this product.  We note, however, that legal
   note 8 to chapter 39, HTSUSA, indicates that the expression
   "tubes, pipes and hoses" includes "sausage casings and lay-
   flat tubing."

        You assert that heading 4823, HTSUSA, also provides for
   this merchandise:

        4823      Other paper, paperboard, cellulose wadding and
                  webs of cellulose fibres, cut to size or shape;
                  Other articles of paper pulp, paper,
                  paperboard, cellulose wadding or webs of
                  cellulose fibers.

   We note that legal note 1(f) to Chapter 48 may be applicable
   to the instant merchandise:

        1.   This Chapter does not cover:

             (f)  Paper-reinforced stratified sheeting of
                  plastics, or one layer of paper or paperboard
                  coated or covered with a layer of plastics, the
                  latter constituting more than half the total
                  thickness, or articles of such materials, other
                  than wall coverings of heading 48.14 (Chapter
                  39).

   Emphasis added.  The instant merchandise is composed of a
   layer of paper coated or covered with a layer of plastics.  It
   would appear to fall within the exclusion of note 1(f).  To
   verify that conclusion, we consulted the Explanatory Notes to
   the HTSUSA.  The Explanatory Notes are not legally binding on
   the Customs Service, but this office consults them in almost
   every instance.  As your submission points out, the
   Explanatory Notes to Chapter 48 indicates that "sausage
   casings" are included in heading 4823.  We note however, that
   the Chapter 48 Explanatory Note language is subject to the
   note 1(f) exclusion above.

        The Explanatory Notes to Chapter 39 address the
   classification of articles made of plastics in combination
   with other materials:

             This Chapter also covers the following products,
        whether they have been obtained by a single operation or
        by a number of successive operations provided that they
        retain the essential character of an article of plastics:

        (a)  Plates, sheets, etc. incorporating a reinforcement
             or a supporting mesh of another material (wire,
             glass,fibres, etc.) embedded in the body of the
             plastics.

                              *  *  *

        (c)  Paper reinforced stratified plastic sheeting, and
             products consisting of one layer of paper or
             paperboard coated or covered with a layer of
             plastics, the latter constituting more than half the
             total thickness, other than wall coverings of
             heading 48.14.

                              *  *  *

             The provisions of the preceding paragraph also apply
        mutatis mutandis, to monofilaments, rods, sticks, profile
        shapes, tubes, pipes and hoses, and articles.

   The above language parallels that found in legal note 1(f) to
   Chapter 48, HTSUSA.  These notes, taken together, indicate an
   intent to classify articles (including tubes, pipes and hoses)
   of plastics and other materials as articles of plastics,
   provided that the plastics constituent comprises more than
   half the thickness.  The Customs laboratory has determined
   that over half the thickness of the sample casings is that of
   the cellulosic plastics material.  The above notes also
   indicate that the article must retain the "essential
   character" of an articles of plastics.  Therefore, although we
   look to heading 3917 for eo nomine classification of the
   sausage casings under GRI 1, essential character is a factor
   for our consideration.

        The basis for your reconsideration request is that the
   essential character of the articles at issue are imparted by
   the paper component, and that HRL 082675 failed to adequately
   consider the contribution of the paper.  We do not agree.

        The Explanatory Notes to GRI 3(b) state that "[t]he
   factor which determines essential character will vary as
   between different kinds of goods."  We consider each essential
   character determination on it's own merits; taking into
   account the varying factors which present themselves.  The
   Explanatory Notes further state that: "[essential character]
   may, for example, be determined by the nature of the material
   or component, its bulk, quantity, weight or value, or by the
   role of a constituent material in relation to the use of the
   goods."  These factors are not all inclusive; they are
   examples of types of considerations which contribute to an
   essential character determination.

        In this case, paper is combined with regenerated
   cellulose to form the sausage casing.  You argue that the
   paper promotes size uniformity, a critical characteristic for
   certain uses.  However, similar statements could be made about
   the porosity of the casing attributable to the type of viscose

   present.  Both of these features are noted with equal
   distinction in the Vista literature you provided.  You state
   that the "principal strength of the casing derives from the
   paper."  You also admit, however, that the cellulose material
   "binds and reinforces the paper."    We are not comparing
   fibrous casings to purely cellulosic casings; the two are
   distinct products.  However, in examining the respective roles
   of the component materials, we do not find that the paper, by
   its nature or its role in the use of the product is so
   predominant as to dictate that the character of the casings is
   essentially that of the paper.

        Other factors which influence an essential character
   determination include the cost, weight and bulk of the
   constituent materials.  Your letter of April 21, 1990,
   includes both cost and weight breakdowns for the paper,
   cellulose and glycerine components.  While the paper is the
   material of greatest expense, the regenerated cellulose is
   higher in weight.  In your letter you assert that the paper
   represents the greatest bulk.  Customs, through our own
   laboratory tests, has determined that the cellulosic plastic
   constitutes between 63 and 68 percent (%) of the sausage
   casings' total thickness.  Bulk is a measure of size or mass.
   We are uncertain of the basis for your claim that the paper
   represents the greatest bulk, since measurements of both
   weight and thickness indicate to the contrary.

        As noted, the holding of HRL 082675 was based on a
   finding that the essential character of the sausage casings
   was imparted by the paper component.  We find no reason to
   revoke or modify that finding.  A review of the facts
   indicates to us that both materials play a role in the use of
   the product, and while the paper may have higher cost, the
   weight and bulk of the plastics are predominant.  These
   factors, taken together, weigh in favor of the cellulosic
   plastics component.

        Combining our essential character analysis with the
   language of the relevant legal and explanatory notes, we find
   that the sausage casings were properly classified in
   subheading 3917.10.10, HTSUSA.  The essential character of the
   casings, in our opinion is imparted by the plastics component.

   Further, the regenerated cellulose comprises more than half of
   the total thickness of the sample casings.  That fact applied
   to the language of the notes, mutatis mutandis, indicates an
   intent to classify sausage casings such as those at issue in
   subheading 3917.10.10, HTSUSA.

   Other issues

        Your letter of January 26, 1989, indicates that you were
   unaware of a prior ruling letter, HRL 081006.  That ruling
   letter may be found through the Legal Precedent Retrieval
   System (LPRS) under the keywords "fiber-reinforced cellulosic-
   plastic sausage casing."  The LPRS is available to the public
   at any Customs reading room, and the ruling letter is
   available upon written request.

        Your January 26, 1991 letter also suggests that this
   office did not accurately consider the tariff headings which
   you advocated as the correct tariff classification.  We regret
   that the ruling letter did not present an analysis detailed to

   your satisfaction.  However, please be assured that all of the
   information you submitted was considered.  The correspondence
   contained in the file indicates a refinement of the issues
   from your perspective over a period of time, and our response
   was directed to that issue which was considered dispositive.

   HOLDING:

        Headquarters Ruling Letter 082675 is affirmed.  The
   sausage casings at issue, described as "fibrous sausage
   casings" and consisting of paper reinforced sausage casings of
   regenerated cellulosic plastic are classified in subheading
   3917.10.10, HTSUSA, as tubes, pipes or hoses of plastics,
   including artificial guts (sausage casings) of cellulosic
   plastics material.  This classification is based on an
   interpretation of the relevant notes and our finding that the
   essential character of the casings is imparted by the
   cellulosic plastics material.  The duty rate applicable to
   this classification is 6.6 percent ad valorem.



                                      Sincerely,


                                      John A. Durant, Director
                                      Commercial Rulings Division