CLA-2-C:R:C:M 953138 MMC
Mr. John M. Peterson, Esq.
Neville, Peterson, & Williams
39 Broadway
New York, New York 10006
RE: Reflective aluminum decorative covering; headings 7606, 7607,
3901, 8306; HQ 086405; chapter 76 note 1(d)
Dear Mr. Peterson:
This is in response to your letter dated 11/14/92 submitted
on behalf of Mitsubishi Kasei America, Inc., to the Regional
Commissioner of Customs in New York for a classification ruling
on "A-Look" and "A-Look EX" decorative coverings under the
Harmonized Tariff Schedule of the United States (HTSUS). Your
letter was forwarded together with a sample of the article to
Customs Headquarters for a reply.
FACTS:
A-Look is a composite material made by laminating a
polyethylene core between two sheets of aluminum alloy. The
silver colored surface is electroplated with a layer of nickel
and chromium, the bronze colored surface is electroplated with
nickel alloy, and the gold colored surface is electroplated with
brass. The back of A-Look is coated with an acrylic resin. A-
Look EX is also a composite material made by laminating a
polyethylene core between two sheets of aluminum alloy with a
backing of fluoride resin. A-Look EX is specially designed for
use outdoors and in locations exposed to high humidity.
Both articles are imported in standard sizes ranging from 2
feet square to 4 feet by 10 feet square, however they can be
manufactured in any size and are advertised as an unbreakable,
light weight, flexible, metallic mirror. Both products'
reflective exterior surface may be etched or inscribed with
decorative patterns. Both can be bent and applied to curved
surfaces, machined to different sizes and shapes, and
mechanically worked (e.g., by cutting, punching, grooving and
bending). Both articles are used in a variety of places such as
ceilings, walls, columns, furniture, displays, and as trims
and accents.
The articles are sold in two different thicknesses, 3
millimeters (mm) and 2 millimeters (mm). The amount of
polyethylene creates the difference in thickness. Polyethylene
is the heaviest component of the 3 mm thick sample weighing 0.49
of a pound(lb.) per square foot(sq. ft.). The aluminum sheets
weigh 0.28 lb. per sq. ft. The polyethylene costs $0.20 per sq.
ft. and the aluminum sheets cost $0.34 per sq.ft.. For the 2 mm
sample, polyethylene predominates by weight, weighing 0.29 lb.
per sq.ft., compared to the aluminum sheets which weigh 0.28 lb.
per sq. ft.. Aluminum costs $0.34 per sq.ft., while the
polyethylene costs $0.12 per sq.ft.. Trace amounts of nickel,
brass, or chromium are electroplated onto the front aluminum
sheet to give the different articles their varying colors.
ISSUE:
Are the products classifiable as (1) a mirror of base
metal, (2) other articles of aluminum, (3) aluminum plates,
sheets and strip, of a thickness exceeding 0.2mm, (4) aluminum
foil (whether or not printed, or backed with paper, paperboard,
plastics, or similar backing materials) of a thickness not
exceeding 0.2mm, or as (4) polymers of ethylene, in primary
forms?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's).
GRI 1, HTSUS, states in part that for legal purposes,
classification shall be determined according to the terms of the
headings and any relative section or chapter notes. The
headings at issue are as follows:
8306 (m)irrors of base metal;
7606 Aluminum plates, sheets and strip, of a thickness
exceeding 0.2min.
7607 Aluminum foil (whether or not printed, or backed
with paper, paperboard, plastics or similar
backing materials) of a thickness (excluding any
backing) not exceeding 0.2 turn
7616 Other articles of aluminum
3901 Polymers of ethylene, in primary forms
You have suggested that A-Look is classifiable as a mirror of base metal
in subheading 8306.30.00, HTSUS. We disagree.
In understanding the language of the HTSUS, the Harmonized
Commodity Description and Coding System Explanatory Notes may be.
consulted. The Explanatory Notes (EN), although not dispositive,
are to be used to determine the proper interpretation of the
HTSUS. 54 Fed. Reg. 35127, 35128, (August 23, 1989). EN 83.06,
pg. 1123, states in pertinent part that mirrors of base metal
include metallic mirrors(other than optical elements), e.g., wall
or pocket mirrors and rear-view mirrors, generally made of steel,
or of chromium, nickel, or silver-plated steel or brass. While
the EN lists examples of types of "mirrors of base metal", it
does not define the term itself. Nowhere else in the HTSUS is
the term "mirror of base metal" defined.
A tariff term that is not defined in the HTSUS or in the EN's is
construed in accordance with its common and commercial meaning, Nippon
Koqasku (USA) Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982).
Common and commercial meaning may be determined by consulting
dictionaries, lexicons, scientific authorities and other reliable
sources. C.J. Tower & Sons rs. United States, 69 CCPA 128, 673 F.2d
1268 (1982). Webster's New Riverside University Dictionary (1988)
defines mirror as a surface able to reflect enough undiffused light to
form a virtual image of an object placed before it. Something that
faithfully reflects or gives a true picture of something else. The
Random House Dictionary of the English Language, Unabridged, (1966)
defines mirror as "a reflecting surface, originally of polished metal
but now usually of glass with a silvery, metallic, or amalgam backing;
such a surface set into a frame, attached to a handle, etc. for use in
viewing oneself, etc. McGraw-Hill Encyclopedia of Science and
Technology, 7th Edition, (1992) further defines mirror by stating in
pertinent part the most familiar use of reflecting optical surfaces is
for the examination of one's own reflected image in a flat or plane
mirror. From these definitions it would appear that there are two
requirements for an article to be considered a mirror; it must be able
to reflect enough undiffused light to form a virtual image of an object
placed before it, and its most common use is to view one's own
reflected image.
Additional U.S. Note l(a), HTSUS, provides that in the absence of
special language or context which otherwise requires- (a) a tariff
classification controlled by use (other than actual use) is to be
determined in accordance with the use in the United States at, or
immediately prior to, the date of importation, of goods of that class or
kind to which the imported goods belong, and the controlling use is the
principal use. At importation, the principal use of these articles are
not as mirrors, but rather as decorative wall coverings.
The A-Look and A-Look EX products do not meet the two requirements
for consideration as a mirror. Many of the articles will be machined and
worked in such a way that it will be impossible for the product to form
a virtual image of an object placed before it. Furthermore, those few
samples which are able to reflect a virtual image will not be principally
used to examine one's own reflected image, but rather to cover walls,
ceilings, furniture, etc. as a decoration.
We note that this interpretation of heading 8306, HTSUS, concurs
with the HTSUS's interpretation of glass wall decorations and glass
mirrors. In HQ 086405 dated 4/16/90, we found that a glass mirrored wall
decoration was classifiable in heading 7013, HTSUS, which provides for
glassware of a kind used for table, kitchen, toilet, office, indoor
decoration or similar purposes. The submitted sample was a piece of etched
reflective glass contained in a wooden frame. The central portion of the
glass featured the name and logo of an NFL football team. The names of
the other NFL teams and a colored strip outlined the periphery of the
glass.
Heading 7009, HTSUS, provides for glass mirrors, whether or not
framed, including rear-view mirrors. The EN's for this heading at page
933 indicate that this heading includes [m]irrors, whether or not framed,
bearing printed illustrations on one surface, provided they retain the
essential character of mirrors. However, once the printing is such as
to preclude use as a mirror, these goods are classifiable in heading 7013,
HTSUS, as decorative articles of glass. We ruled, in HQ 086405 that this
article lost its essential character as a mirror because the sample would
not be principally used to see one's reflection. The purpose of the
article was embodied in its decorative effect.
Four remaining headings describe the A-Look and A-Look EX
products. Of these four, three describe a different form of aluminum
which would correspond to the aluminum parts of the articles and the
fourth describes the polyethylene secured between the two aluminum
parts. Because the articles are described in more than one heading
they are considered composite goods.
GRI 3 states that when, by application of rule 2(b) or for any
other reason, goods are, prima facie, classifiable under two or more
headings, classification shall be effected as follows:
(b) Mixtures, composite goods consisting of different
materials or made up of different components, and goods put up
for retail sale, which cannot be classified by reference to
3(a), shall be classified as if they consisted of the material or
component which gives them their essential character, insofar as
this criterion is applicable.
EN VIII to GRI 3(b), pg. 4, states that, the factor which
determines essential character will vary as between different kinds of
goods. It 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.
We find that aluminum imparts the essential character to these
articles. As noted above, aluminum costs more than polyethylene.
Furthermore, the front and back of the articles are comprised of
aluminum, and aluminum is the surface which serves as a base for the
trace amounts of nickel, chromium, or brass which give the articles
their reflective quality. While polyethylene weighs more it costs
less and serves only as support for the aluminum.
Because we have determined that the articles are essentially of
aluminum, three possible headings are left that describe the articles;
heading 7606, HTSUS, which provides for aluminum sheets, heading 7607,
HTSUS, which provides for aluminum foil, and heading 7616, which
provides for other articles of aluminum.
Heading 7606, HTSUS, provides for aluminum plates, sheets and
strip, of a thickness exceeding 0.2turn. Heading 7607, HTSUS,
provides for aluminum foil. Chapter 76 note l(d) defines plates,
sheets, strip and foil as: Flat-surfaced products coiled or not, of
solid rectangular (other than square) cross section with or without
rounded corners, of a uniform thickness, which are:
- of rectangular (including square) shape with a thickness not exceeding
one-tenth of width.
These products are not an aluminum sheet or aluminum foil
because they do not meet the description outlined in the EN's for
products of either of the two headings. EN 76.06, pg. 1065, states
that aluminum sheets correspond to similar goods made of copper. The
provisions to heading 74.09 apply mutatis mutandis to this heading.
EN 74.09, pg.1048, provides that all such goods remain in the heading(
in this instance heading 7606) if worked (e.g., cut to shape,
perforated, corrugated, ribbed, channelled, polished, coated,
embossed, or rounded at the edges) provided they do not thereby assume
the character of articles or of products of other headings. A-Look and
A-Look EX, cannot be considered an aluminum sheet because they consist
of two aluminum sheets with a polyethylene core and backings of resin.
The entire product is not an aluminum sheet, but an article made from
aluminum sheets.
Further, these articles are not classifiable as aluminum foil. EN 74.10,
pg. 1048, which applies mutatis mutandis, to aluminum foil states, in
pertinent part:
[o]ther foil, such as that used for making fancy goods, is often
backed with paper, paperboard, plastics, or similar backing
materials, either for convenience of handling, transport, or in
order to facilitate subsequent treatment, etc.
Thus, even if we assume that the aluminum meets the 0.2turn thickness
requirement and the resin backing could be found attributable to one of
the sheets and the polyethylene backing could be attributable to the
other aluminum sheet, the finished product would not meet the EN
description. Although we have not been informed as to the precise
reason for the resin and polyethylene layers, they appear to be present
for structural, and installation reasons as well as a form of
protection from the environment. Clearly, they are not for convenience
of handling, transport, etc. Furthermore, the EN refers to foil sheets
backed with plastics, etc., not sheets backed with polyethylene in
combination with other backed foil sheets. These sheets cannot be
aluminum foil for the same reasons they cannot be aluminum sheets.
A-Look and A-Look EX are classifiable as other articles of
aluminum in heading 7616, HTSUS. EN 76.16, pg. 1070, states that
this heading covers all articles of aluminum other than those covered
by the preceding headings of this Chapter, or by Note 1 of section XV,
or by Chapter 82 or 83, or more specifically defined by the
Nomenclature. These articles are not covered by another heading of
this chapter as discussed above, they are not listed in Note 1 of
Section XV or in Chapter 82 or 83, and they are not more specifically
defined by the Nomenclature.
HOLDING:
A-Look and A-Look EX are classifiable as other articles of
aluminum in heading 7616.90.00, HTSUS. They are subject to a column
one rate of duty of 5.7% ad valorem.
Sincerely,
John Durant, Director