CLA-2 RR:CR:GC 959298 HMC
Port Director of Customs
P.O. Box 1490
St. Albans, VT 05478
RE: Protest 0201-96-100158; Polacolor Foil;
Polypropylene/Aluminum/Polypropylene Laminate; Subheading
3921.90.40 and 7607.20.50; General Explanatory Note to Chapter
39; Explanatory Note 39.21; Other plate, sheets, film, foil and
strip, of plastics; Aluminum Foil.
Dear Port Director:
This is our decision on protest 0201-96-100158, filed
against your classification of Polacolor foil. The entries under
protest were liquidated on March 15, 1996, and this protest
timely filed on April 17, 1996.
FACTS:
The merchandise under protest is made of aluminum foil
sandwiched between two laminates of polypropylene. After
importation, the Polacolor foil is used to manufacture wrappings
for photographic films. Each plastic layer has a thickness of
0.001 inch; the aluminum foil has a thickness of 0.0003 inch.
The merchandise was entered under a provision for backed
aluminum foil under subheading 7607.20.50 of the Harmonized
Tariff Schedule of the United States (HTSUS). However, the
entries were liquidated under subheading 3921.90.40, HTSUS, as
other plates, sheets, film, foil and strip, of plastics.
The 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:
7607.20 Backed:
7607.20.50 Other...Free
* * * *
3921 Other plates, sheets, film, foil and strip, of
plastics:
3921.90 Other:
Other:
3921.90.40 Flexible...4.2%
ISSUE:
Whether the Polacolor foil is classifiable as other plates,
sheets, film, foil and strip, of plastics under subheading
3921.90.40, HTSUS, or as other backed aluminum foil under
subheading 7607.20.50, HTSUS.
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance
with the General Rules of Interpretation (GRIs). GRI 1 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, and provided the headings or notes do not
require otherwise, according to GRIs 2 through 6.
The Polacolor foil is made of an aluminum foil sandwiched
between two layers of polypropylene. The merchandise is
described in part by heading 7607, as aluminum foil, and by
heading 3921, as other plates, sheets, film, foil and strip of
plastics.
GRI 3(a) states that when two or more headings each refer to
part only of the materials or substances contained in mixed or
composite goods or to part only of the items in a set put up for
retail sale, those headings are to be regarded as equally
specific in relation to those goods, even if one of them gives a
more complete or precise description of the goods. The Polacolor
foil is made up of different components which together form an
inseparable whole. Since the Polacolor foil is a composite good,
described in part by two different headings, we must apply GRI
3(b) which requires that composite goods are to be classified
according to the component which gives the good its essential
character.
The Harmonized Commodity Description And Coding System
Explanatory Notes (EN's) constitute the official interpretation
of the Harmonized System. While not legally binding on the
contracting parties, and therefore not dispositive, the EN's
provide a commentary on the scope of each heading of the
Harmonized System and are thus useful in ascertaining the
classification of merchandise under the System. Customs believes
the EN's should always be consulted. See T.D. 89-80, 54 Fed.
Reg. 35127, 35128 (Aug. 23, 1989).
Explanatory Note (VIII) to GRI 3(b), at page 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 believe the polypropylene laminates impart the essential
character to the Polacolor foil. In HQ 950705, dated July 17,
1992, Customs determined that a coffee bag made of a middle layer
of aluminum foil with the outer and inner layers made of
polyurethane and polyethylene had the essential character of an
article of plastic. In that case, Customs found that the
aluminum layer was mainly a moisture barrier and did not provide
any form of strength to the bag, and that the plastic
predominated by weight overwhelmingly. As in the case of the
coffee bag, we find that the aluminum foil is used only as a
sunlight and moisture barrier and that it does not add
significantly to the strength of the wrapping. We believe that
the plastic imparts the essential character to the subject
merchandise. In accordance with GRI 3(b), the Polacolor foil is
classifiable as if made only of polypropylene.
Articles of polypropylene are plastics provided for in
Chapter 39, HTSUS. General EN to Chapter 39, HTSUS, states, at
page 598, that
[Chapter 39] 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 articles of plastics:
...
(b) Plates, sheets, etc., of plastics separated by a
layer of another material such as metal foil, paper,
paperboard.
Having determined that the Polacolor foil has the essential
character of articles of plastics, we find that it is described
by heading 3921, as other plates, sheets, film, foil and strip,
of plastics. This is supported by the General EN to Chapter 39
and EN 39.21, which state that heading 3921 covers products
laminated with another material. The Polacolor foil is therefore
classifiable under subheading 3921.90.40, HTSUS, as other plates,
sheets, film, foil and strip, of plastics, other, flexible,
other.
HOLDING:
Under the authority of GRI 1, the Polacolor is classifiable
under subheading 3921.90.40, HTSUS, as other plates, sheets,
film, foil and strip, of plastics, other, flexible, other. The
1994 rate of duty is 4.2%.
This protest should be DENIED.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, you should mail this decision, together with the
Customs Form 19, to the protestant no later than 60 days from the
date of this letter. Any reliquidation of the entry or entries
in accordance with the decision must be accomplished prior to
mailing the decision.
Sixty days from the date of the decision, the Office of
Regulations and Rulings will take steps to make the decision
available to Customs personnel via the Customs Rulings Module in
ACS and to the public via the Diskette Subscription Service, the
Freedom of Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division