CLA-2 RR:CR:GC 965210 GOB
Port Director
U.S. Customs Service
200 East Bay Street
Charleston, SC 29401
RE: Protest 1601-01-100240; Aluminum Foil; Backed
Dear Port Director:
This is our decision regarding Protest 1601-01-100240, filed on behalf of Hueck Foils L.L.C. (“protestant”) concerning the classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of certain aluminum foil. We have considered the claims raised in the protest as well as those made in a telephone conference on March 7, 2002.
FACTS:
The file reflects the following. The 16 entries at issue were filed between April 20, 2000 and March 16, 2001. Eight of the subject entries were liquidated on May 18, 2001, and eight were liquidated on June 15, 2001. The protest was filed on August 9, 2001.
The aluminum foil was entered under subheading 7607.20.50, HTSUS, as: “Aluminum foil . . . of a thickness (excluding any backing) not exceeding 0.2 mm: . . . Backed: . . . Other.” The entries were liquidated under subheading 7607.19.60, HTSUS, as: “Aluminum foil . . . of a thickness (excluding any backing) not exceeding 0.2 mm: Not backed: . . . Other: . . . Other: . . . Other.”
The protestant describes the aluminum foil in pertinent part as follows:
The grade of aluminum foil (aluminum 12-micron plain dull) is designated as HPL600-409 and is imported in rolls of various weights. Grade HPL600-409 is 12-micron (.012mm) aluminum foil backed with 12-microns of Polyethyleneterephthalate (PET). The Polyethyleneterephthalate (PET) backing is bonded to the aluminum foil using an adhesive that is a two-part formula on the basis of polyurethane.
ISSUE:
What is the classification under the HTSUS of the subject aluminum foil?
LAW AND ANALYSIS:
We note initially that the protest was timely filed under the statutory and regulatory provisions for protests, 19 U.S.C. 1514(c)(3)(A) and 19 CFR 174.12(e)(1).
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:
7607.19 Other:
Other:
7607.19.60 Other
* * * * * *
7607.20 Backed:
7607.20.50 Other
There is no dispute that the subject aluminum foil is described in heading 7607, HTSUS. The issue here is whether or not the aluminum foil is “backed.” If the aluminum foil is backed, it is classified in subheading 7607.20.50, HTSUS. If the aluminum foil is not backed, it is classified in subheading 7607.19.60, HTSUS.
EN 76.07 does not provide any information with respect to what “backed” means in this context. EN 74.10, which pertains to copper foil, is not directly on point as it pertains to a different type of foil. However, we believe EN 74.10 is instructive with respect to the concept and meaning of “backed.” It provides in pertinent part as follows:
Other foil . . . 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. [Emphasis supplied.]
In Laboratory Report # SV20010167 dated February 9, 2001, the Customs Service Laboratory in Savannah stated in pertinent part as follows: “The sample, a metal foil measuring 0.028 mm in thickness, is composed of Aluminum coated on one side with a film of polyester.” [Emphasis supplied.]
In a memorandum dated February 4, 2002, the Customs Service Office of Laboratories & Scientific Services concurred with the Savannah Laboratory and stated that the subject foil is coated with a plastics material, and is not backed.
The Random House Dictionary of the English Language (unabridged ed.; 1973) provides the following definitions: “backing” is defined in pertinent part as follows: “. . . 3. That which forms the back or is placed at or attached to the back of anything to support, strengthen, or protect it . . .”; “backed” is defined in pertinent part as follows: “1. having a back, setting, or support (often used in combination) . . .”; “coating” is defined in pertinent part as follows: “1. a layer of any substance spread over a surface . . .”; “coat” is defined in pertinent part as follows: “. . . 3. A layer of anything that covers a surface . . .”
In HQ 962356 dated August 1, 1997, we stated in pertinent part as follows:
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.
We have reviewed all of the rulings cited by the protestant in the telephone conference. Those rulings have not convinced us that the subject aluminum foil is “backed.”
We note additionally that the protestant has not established that the claimed backing of the subject foil is used “for convenience of handling or transport, or in order to facilitate subsequent treatment, etc.” See EN 74.10, excerpted above.
After a careful consideration of this matter, we determine that the subject aluminum foil is not backed. Therefore, 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.”
You are instructed to DENY the protest.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to 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 in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.treas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division