CLA-2 OT:RR:CTF:TCM H034975 HkP
Port Director
Port of St. Albans
U.S. Customs and Border Protection
50 S. Main Street, Suite 100R St. Albans, VT 05478
RE: Modification of HQ 959298; Classification of Polacolor foil
Dear Port Director:
This is in reference to Headquarters Ruling Letter (HQ) 959298, dated May 8, 1998, regarding the classification of an aluminum foil and plastic product, referred to as “Polacolor foil”, under the Harmonized Tariff Schedule of the United States (“HTSUS”). In that ruling, the U.S. Customs Service (now U.S. Customs and Border Protection (“CBP”)) classified Polacolor foil under heading 3921, HTSUS, using an essential character analysis pursuant to GRI 3. However, in our holding, we stated that classification was in accordance with
GRI 1. After reviewing HQ 959298 it is now our view that Polacolor foil should have been classified using a GRI 1 analysis. For this reason, we hereby modify HQ 959298 with respect to its legal analysis.
We note that under San Francisco Newspaper Printing Co. v. United States, 9 Ct. Int’l Trade 517, 620 F. Supp. 738 (1985), the decision on the merchandise which was the subject of Protest 0201-96-100158 was final on both the protestant and CBP. Therefore, while we may review the law and analysis of HQ 959298, any decision taken herein would not impact the entries subject to that ruling.
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 was published on
September 4, 2008, in the Customs Bulletin, Volume 42, No. 37. One comment was received in response to this notice, in which the commenter noted that it was unclear why CBP believes that the Polacolor foil retains the essential character of plastic.
FACTS:
The merchandise at issue was described in HQ 959298 as:
[A]luminum 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 [inches]; the aluminum foil has a thickness of 0.003 [inches].
ISSUE:
What is the legal basis for classifying Polacolor foil under heading 3921, HTSUS?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 GRIs 2 through 6 may then be applied in order.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the HTSUS. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989).
The General EN to Chapter 39 provides, in relevant part:
* * *
This Chapter also 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.
EN 39.21 provides, in relevant part:
This heading covers plates, sheets, film, foil and strip, of plastics, other than those of heading 39.18, 39.19 or 39.20 or of Chapter 54. It therefore covers only cellular products or those which have been reinforced, laminated, supported or similarly combined with other materials. (For the classification of plates, etc. combined with other materials, see the General Explanatory Note.)
Polacolor foil is a composite good consisting of foil and plastic. Under
GRI 1, the expression “other” in the legal text of heading 3921, HTSUS, is to be construed “according to the terms of the headings and any relative section or chapter notes … provided such headings or notes do not otherwise require ….” Accordingly, heading 3921, HTSUS, has to be read in the context of the other headings in which plastic plates, sheets, film, foil and strip can be classified, i.e, (in Chapter 39) heading 3918, HTSUS, (Floor coverings of plastics; wall and ceiling coverings of plastics), 3919, HTSUS, (Self-adhesive plates, sheets, film, foil, tape, strip and other flat shapes, of plastics) and 3920, HTSUS, (Other plates, sheets, film, foil and strip, of plastics, noncellular and not reinforced, laminated, supported or similarly combined with other materials). Based on the text of these headings, we find that heading 3921, HTSUS, provides for, among other things, plastic film (other than those of heading 3918, 3919, or 3920, HTSUS) combined with other materials. We find, therefore, that composite goods consisting in part of plastic sheets or other forms named in the heading may be classified in heading 3921, HTSUS, on the basis of GRI 1, provided they retain the essential character of articles of plastics. This interpretation of the heading text is supported by the Explanatory Notes to heading 3921, HTSUS. See EN 39.21 and the General EN to Chapter 39, which explains that sheets of plastics separated by a layer of foil are provided for in Chapter 39. The Polacolor foil retains the essential character of articles of plastic because the plastic layers encase the foil layer and confer on to it the characteristics of plastic.
Based on the foregoing analysis, we find that Polacolor foil is classified under heading 3921, HTSUS, pursuant to GRI 1. Consequently, there is no need to classify the product using GRI 3. We note that neither the heading text nor the relevant Legal Notes provide for aluminum foil sandwiched between layers of plastic within heading 7607, HTSUS, at the GRI 1 level of classification.
HOLDING:
By application of GRI 1, Polacolor foil is classified under heading 3921, HTSUS. It is specifically provided for in subheading 3921.90.40, HTSUS, which provides for: “Other plates, sheets, film, foil and strip, of plastics: Other: Other: Flexible.” The column one, general rate of duty is 4.2% ad valorem.
EFFECT ON OTHER RULINGS:
HQ 959298 is hereby modified with respect to its legal analysis. The classification of the merchandise described therein is unchanged.
In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division