CLA-2 RR:TC:MM 960276 HMC
Port Director of Customs
P.O. Box 610
Pembina, ND 58271
RE: PRD 3401-97-100016; Aluminum Foil/Polypropylene/Aluminum
Foil, Polyester/Aluminum Laminates, Aluminum/Polypropylene
Laminates; Subheadings 7607.11.30 and 7607.20.50; Chapter 76,
Note 1 (d); Explanatory Notes 76.07 and 74.10; Backed Aluminum
Foil.
Dear Port Director:
This is our decision on Protest 3401-97-100016, filed
against your classification of various aluminum foils. The
entries under protest were liquidated on November 22, 1996, and
December 6, 1996, and this protest timely filed on January 17,
1997. Samples were submitted with the protest.
FACTS:
The merchandise consists of various aluminum foil products
of different widths, invoiced as aluminum/polypropylene/aluminum
foil, polyester/aluminum laminates and aluminum/polypropylene
laminates. The protest focuses on the
aluminum/polypropylene/aluminum foil product (APA foil), which is
described as being made of a thin film of polypropylene with a
thin layer of aluminum joined to both sides of the polypropylene
film. The lamination is obtained by first combining
polypropylene with an adhesive and bonding aluminum foil on one
side. Aluminum foil is bonded again on the opposite side, after
the aluminum/polypropylene laminate passes through an oven to
heat it up. The polypropylene ends up "sandwiched" between two
thin layers of aluminum foil, adding integral strength to the
laminate that the aluminum foil cannot provide on its own. The
laminate is used as a shield in coax (cable TV wire) cables. The
aluminum keeps electro-magnetic interference out of the cable and
prevents the signals that are carried in the cable from leaking
out. The aluminum on the APA foil has a thickness of .00035
inches and the polypropylene has a thickness of .001 inches. By
telephone, the importer clarified that the additional items in
the protest consist of one sheet of aluminum foil with the
polyester or polypropylene laminated to just one side and that
the thickness of the aluminum does not exceed 0.2 mm.
The merchandise was entered as other backed aluminum foil of
subheading 7607.20.50, Harmonized Tariff Schedule of the United
States (HTSUS). However, the entries were liquidated under
subheading 7607.11.30, HTSUS, as aluminum foil.
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:
Not backed:
7607.11 Rolled but not further worked:
Of a thickness not
exceeding 0.15 mm:
7607.11.30 Of a thickness not
exceeding 0.01
mm.....5% (CA)
7607.20 Backed:
7607.20.50 Other...Free
ISSUE:
Whether the aluminum foils are classifiable 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. GRI 6 states
that the classification of goods in the subheadings of a heading
shall be determined according to the terms of those subheadings
and any related subheading notes and, mutatis mutandis, to the
above rules, on the understanding that only subheadings at the
same level are comparable. For the purposes of this rule, the
relative section, chapter and subchapter notes also apply, unless
the context otherwise requires.
Chapter 76, note 1(d), HTSUS, provides in part, as follows:
Plates, sheets, strip and foil
Headings 7606 and 7607 apply, inter alia, to plates,
sheets, strip and foil with patterns (for example,
grooves, ribs, checkers, tears, buttons, lozenges) and
to such products which have been perforated,
corrugated, polished or coated, provided that they do
not thereby assume the character of articles or
products of other headings.
The Harmonized Commodity Description And Coding System
Explanatory Notes (ENs) constitute the official interpretation of
the Harmonized system. While not legally binding on the
contracting parties, and therefore not dispositive, the ENs
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 Notes should always be consulted. See T.D. 89-80, 54 Fed.
Reg. 35127, 35128 (Aug. 23, 1989). Explanatory Note 76.07, at
page 1158, states in part that:
[t]his heading covers the products defined in Chapter
Note 1(d), when of a thickness not exceeding 0.2 mm.
[t]he provisions of the Explanatory Note to heading
74.10 relating to copper foil apply, mutatis mutandis,
to this heading.
Explanatory Note 74.10, at page 1138, states in part that:
[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 or transport, or in order to facilitate
subsequent treatment, etc.
Heading 7607 provides for aluminum foil backed with paper,
paperboard, plastics or similar backing material. However,
neither the Notes to Chapter 76 nor ENs 74.10 and 76.07 are
instructive with respect to the term "backed."
A tariff term that is not defined in the text of the HTSUS
or the ENs is construed in accordance with its common and
commercial meaning. Nippon Kogaku (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 v.
United States, 69 CCPA 128, 673 F.2d 1268 (1982). According to
information obtained from the aluminum industry, the term "Backed
foil" is defined as a "lamination composed of foil and a coherent
substrate. The substrate or backing may be either self-adherent
or bonded to the foil by means of an interposed adhesive. Paper,
woven fabrics, cellophane, polyethylene film and the like are
typical examples of such backings or substrates."
In line with the Notes to Chapter 76 and the ENs to heading
7607, it is our view that the polypropylene and polyester, in
this instance, are backing material, used as reinforcement for
convenience of handling or transport. We find that the
lamination processes, which join the aluminum to the
polypropylene or polyester and "sandwiches" polypropylene or
polyester between two sheets of aluminum foil for added strength,
meet the definition of "backed" foil. The lamination is obtained
by first combining polypropylene with an adhesive and bonding
aluminum foil on one side. The aluminum in the APA foil is
bonded again on the opposite side, after the
aluminum/polypropylene laminate passes through an oven to heat it
up. The polypropylene or polyester provides strength to the
laminate as the foil has no integral strength on its own. The
aluminum in the APA foil is reinforced for easier handling as a
shielding material in coax (cable TV wire) cables. We therefore
conclude that the aluminum foils included in the captioned
protest are other backed foil of a thickness not exceeding 0.2 mm
of subheading 7607.20.50, HTSUS.
HOLDING:
Under the authority of GRI 1, the aluminum foils included in
the captioned protest are classifiable in subheading 7607.20.50,
HTSUS, as "Aluminum foil...: Backed: Other." The rate of duty is
free.
This protest should be GRANTED. 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
Tariff Classification Appeals Division