CLA-2 OT:RR:CTF:TCM H045859 HkP
Ms. Venetia Huffman
C.V. International, Inc.
#13 Interstate Corporate Center
Suite 141
Norfolk, VA 23502
RE: Modification of NY J84648; Capsteril® PAF212 flexible packaging material
Dear Ms. Huffman:
This is in reference to New York Ruling Letter (NY) J84648, issued to you on July 3, 2003, regarding the classification of five kinds of flexible packaging material under the Harmonized Tariff Schedule of the United States (“HTSUS”). In that ruling, in relevant part, U.S. Customs and Border Protection (“CBP”) classified Capsteril® PAF212, a material made up of PET, aluminum foil and peelable HDPE adhered together in layers, under heading 7607, HTSUS, as “backed” aluminum foil. After reviewing this decision we have come to the conclusion that this classification is incorrect and that the correct classification for this product is under heading 3921, HTSUS. For this reason, we hereby modify NY J84648.
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 modification was published on January 2, 2009, in the Customs Bulletin, Volume 43, No. 2. No comments were received in response to this notice.
FACTS:
In NY J84648, the merchandise at issue was described, in pertinent part, as follows:
Capsteril® PAF212 is a tri-laminate of PET, aluminum foil and peelable HDPE. This foil gives a peelable sealing to PE containers. The aluminum foil and peelable HDPE are of the same thickness. The PET layer makes the foil extra tear resistant. It is to be used as a lidding for blow-molded or injection molded containers, providing a sterile closure in an aseptic filling process. The total thickness is .1182mm. The mass (g/m2) of the foil exceeds that of the plastic.
According to a diagram included on the Technical Data Sheet for the Capsteril® PAF212 packaging material, submitted as a part of the ruling request that resulted in the issuance of NY J84648, the PET film is adhered to one side of the aluminum foil and the peelable HDPE film is adhered to the other.
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 HTSUS provisions under consideration are as follows:
3921 Other plates, sheets, film, foil and strip, of plastics:
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:
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.)
As previously indicated, the instant merchandise was classified under heading 7607, HTSUS, as “backed” aluminum foil. The tariff does not define the term “backed”. When a tariff term is not defined by the HTSUS or the legislative history, its correct meaning is its common, or commercial, meaning. Rocknel Fastener, Inc. v. United States, 267 F.3d 1354, 1356 (Fed. Cir. 2001). "To ascertain the common meaning of a term, a court may consult 'dictionaries, scientific authorities, and other reliable information sources' and 'lexicographic and other materials.'" Id. (quoting C.J. Tower & Sons of Buffalo, Inc. v. United States, 673 F.2d 1268, 1271, 69 C.C.P.A. 128 (C.C.P.A. 1982); Simod Am. Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989)). The Random House Dictionary of the English Language defines “backing” as “that which forms the back or is placed at or attached to the back of anything to support, strengthen, or protect it. The aluminum industry defines the term “backed foil” as “a lamination composed of foil and a coherent substrate. The substrates 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.” (Cited in HQ 965210, March 20, 2002, and HQ 966769, January 5, 2004.) Based on these sources, CBP has previously found that the word “backed” is defined, in pertinent part, as “having a back, setting or support”. Id. We now note that the Oxford English Dictionary (Oxford University Press, 2008) defines the noun “back” as: “3. a. gen. That side or surface of any part … of any object, which answers in position to the back; that opposite to the face or front, or side approached, contemplated or exposed to view; e.g. the back of the head, of the leg; the back of a house, door, picture, bill, tablet, etc.” Also, “5. a. The side of any object away from the spectator, or spectators generally, the other or far side. at the back of: behind, on the farther side of[.]” Furthermore, EN 74.10 (which applies, mutatis mutandis, to heading 76.07 (see EN 76.07)) explains that “backing” may be added to a good to facilitate handling or transport or in order to facilitate subsequent treatment. Based on the common and commercial meaning of the word “backed” and the explanation provided in the ENs, we find that foil to one side of which a coherent substrate has been added (the “back”) in order to strengthen, support, or protect the foil or to facilitate handing, transport or subsequent treatment may be classified in heading 7607 as “backed” foil on the basis of GRI 1.
Capsteril® PAF212 packaging material is not described by the term “backed”. Although the plastic layers are added to the foil for strength and to support, protect, and facilitate handling, transport and subsequent treatment of the foil, the plastics are added to both sides of the foil and, therefore, cannot properly be considered “backing.” Consequently, the Capsteril® PAF212 packaging material cannot be classified in heading 7607, HTSUS, using a GRI 1 analysis. In this regard, we note that CBP has previously classified foil product comprised of a layer of plastic sandwiched between two layers of aluminum foil as “backed” aluminum foil under heading 7607, on the basis of GRI 1. See HQ 960276, dated August 1, 1997. However, the foil product classified in that ruling was an aluminum foil/plastic/aluminum foil composition while the product currently under consideration is a plastic/aluminum foil/plastic composition. The product classified in HQ 960276 was properly found to be “backed” because one side of each layer of the foil was adhered to a common inner plastic substrate, that is, the foil was placed “back-to-back” on the substrate, in order to strengthen the foil. In the current situation, both the front and the back of the internal foil layer are adhered to the back of each external plastic layer. Consequently, we find that the merchandise at issue is not similar to the merchandise classified in HQ 960276 and cannot be classified in the same provision.
Furthermore, we find that Capsteril® PAF212 flexible packaging material cannot be classified under heading 7607, HTSUS, as “not backed” aluminum foil on the basis of a GRI 1 analysis because it is combined with another material but is not backed or coated. Note 1(d) to Chapter 76 allows for foil which has been coated (the other specified treatments do not concern the combination of foil with other materials) to be classified in heading 7607, HTSUS, using GRI 1, provided that the foil has not assumed the character of an article or product of another heading. This is also explained in the General ENs to Chapter 72, which applies, in part, to products of Chapter 76 (see General EN to Chapter 76). CBP has previously found that a “coating” is “a layer of any substance spread over a surface.” See HQ 966769, dated January 5, 2004, in which CBP determined that lacquer applied in liquid form and which hardened subsequent to its application was a coating and not a backing. We note that “lamination” is not mentioned in Note 1(d) to Chapter 76. Consequently, Capsteril® PAF212 flexible packaging material is not classifiable in heading 7607, HTSUS.
Capsteril® PAF212 flexible packaging material is a composite good consisting of foil and plastics. 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 explain that sheets of plastics separated by a layer of foil are provided for in Chapter 39, HTSUS.
The Capsteril® PAF212 packaging material retains the essential character of an article of plastic because its plastic layers encase the foil layer and confer on to it the characteristics of plastic. Based on the foregoing, we find that the Capsteril® PAF212 packaging material is classified under heading 3921, HTSUS, pursuant to GRI 1.
HOLDING:
By application of GRI 1, Capsteril® PAF212 flexible packaging material 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:
NY J84648, dated July 3, 2003, is hereby modified with respect to the classification of Capsteril® PAF212 flexible packaging material. The classification of the other items 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