CLA-2 RR:CR:GC 965976 GOB
Michael A. Johnson
Rodriguez O’Donnell Ross Fuerst Gonzalez & Williams
20 North Wacker Drive
Suite 1416
Chicago, IL 60606
RE: Revocation of HQ 965610; Aluminum Foil
Dear Mr. Johnson:
This letter is with respect to HQ 965610 issued to you on behalf of Vaw Flexible Packaging on September 20, 2002. HQ 965610 affirmed NY H87523 dated January 25, 2002, with respect to the merchandise the subject of HQ 965610 and this ruling. We have reviewed the classification in HQ 965610 and have determined that it is incorrect. This ruling sets forth the correct classification.
Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of HQ 965610, as described below, was published in the Customs Bulletin on November 13, 2002. No comments were received in response to the notice.
FACTS:
In HQ 965610, the subject merchandise was described as follows:
The merchandise at issue is aluminum foil known as “top peel”® or “Aluthene”®. Three types of Aluthene®, Aluthene® 40 II E 133/6, Aluthene® 50 II E 133/6 and 12 are the subject of this reconsideration. The merchandise is used as a peelable closure or operculum (i.e., a non-permeable and sterilized lid or seal) for bottles and cups in the food packing industry. The product has two layers. The outer layer of Aluthene 40 II E 133/6 is formed of an aluminum foil with a thickness of 0.038mm. The outer layers of Aluthene® 50 II E 133/6 and 12 are made of an aluminum foil with a thickness of 0.048mm. According to your submission, the foil has a second layer – “a co-extruded plastic sealing layer (a plastic film) laminated to one side, namely, the side which forms the inside of the packaging top for which the foil is used – the side which will face the food product being packaged.” The layer has a thickness of 0.030mm in all three products, and is used for heat sealing to different types of plastics, glass or metal.
In HQ 965610, we classified the subject aluminum foil in subheading 7607.11.60, HTSUS. As stated above, we have reviewed that classification and have determined that it is incorrect. This ruling sets forth the correct classification.
ISSUE:
What is the classification under the HTSUS of the subject foil?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI’s”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI’s may then be applied.
The Harmonized Commodity Description and Coding System Explanatory Notes (“EN’s”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.
The HTSUS provisions under consideration are as follows:
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 mm:
Not backed:
7607.11 Rolled but not further worked:
Of a thickness not exceeding 0.15 mm:
7607.11.60 Of a thickness exceeding 0.01 mm
* * * * * *
7607.19 Other:
Other:
7607.19.60 Other
In HQ 965610, the crucial issue addressed was whether or not the aluminum foil was “backed.” We concluded that the aluminum foil was not “backed” and classified the foil in subheading 7607.11.60, HTSUS. The issue of whether the foil was “further worked” was not examined. See the language of subheading 7607.11, HTSUS. If the aluminum foil is “further worked,” it is not described in subheading 7607.11.60, HTSUS, and is described in subheading 7607.19.60, HTSUS.
In Winter-Wolff Inc. v. United States, 22 CIT 70 (1998), in finding that certain laser-treated aluminum capacitor foil was classified in subheading 7607.19.60, HTSUS, the court held that “further worked” should be defined in accordance with its common, dictionary meaning for the purpose of subheading 7607.11, HTSUS. From two dictionaries, the court interpreted the common dictionary meaning of “further worked” to be as follows: “. . . to subject an existing product to some process of development, treatment, or manufacture to a greater degree or extent . . . to form, fashion or shape an existing product to a greater extent.” Id. at 78.
In your letter of April 5, 2002, requesting reconsideration of NY H87523, you stated in pertinent part as follows:
The product is not merely coated. It has a co-extruded plastic sealing layer (a plastic film) laminated to one side, namely, the side which will form the inside of the packaging top for which this foil is used – the side which will face the food product being packaged. It also has a printable lacquer coating on the outside surface . . .
We now conclude that the work performed on the subject aluminum foil (i.e., coatings) constitutes a “further working” based upon the definitions in Winter-Wolff, supra, i.e., the original product of the aluminum foil was developed, treated or manufactured to a greater extent. Because the aluminum foil is further worked, it is classified in subheading 7607.19.60, HTSUS, as: “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 mm: Not backed:. . . Other: . . . Other: . . . Other.”
HOLDING:
The subject aluminum foil is classified in subheading 7607.19.60, HTSUS, as: “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 mm: Not backed:. . . Other: . . . Other: . . . Other.”
EFFECT ON OTHER RULINGS:
HQ 965610 is revoked. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Acting Director
Commercial Rulings Division