CLA-2 OT:RR:CTF:TCM H251044 SKK
Port Director
U.S. Customs and Border Protection
Port of Charlotte
1901 Cross Beam Drive
Charlotte, North Carolina 28217-2823
Attn: Elizabeth Orraca, Import Specialist
RE: Signature Foils; Application for Further Review of Protest Number 1512-13-100089.
Dear Port Director:
This is in response to an Application for Further Review (AFR) of Protest No. 1512-13-100089, dated October 9, 2013, submitted by counsel on behalf of Kurz Transfer Products, L.P. (Protestant), in response to your classification of “Brushed Stamping Foils” under the Harmonized Tariff Schedule of the United States (HTSUS). On February 26, 2015, Protestant met with U.S. Customs and Border Protection’s Office of Trade, Regulations and Rulings, Tariff Classification and Marking Branch, to discuss the classification of this product as well as related products at issue in pending protests before the Port of Charlotte for which the Protestant is also seeking AFR.
FACTS:
This protest concerns the classification of “Brushed Stamping Foils.” The subject merchandise was entered at the Port of Charlotte via seven entries dated between April 3, 2012, and September 10, 2012, under heading 4908, HTSUS, as “transfers (decalcomanias).” On March 11, 2013, CBP issued a CBP Form 29 Rate Advance and
the subject merchandise was liquidated, on April 12, 2013, under 3212.10.0000, HTSUSA (Annotated), as stamping foils. The Protestant argues that the subject merchandise is properly classified as entered. The AFR was forwarded for our consideration.
Protestant describes the subject merchandise as a product that falls within KURZ’s line of brushed patterned foils. Kurz’ brushed products include items with the following designations: S-Brush; N-Brush; GEB.AL.AM; GEB.AL.AP; GEB.AL.BM, and; GEB.UNIC.CR. These foils feature a “brushed” pattern that has been physically embossed onto a thin carrier film with a metallized layer. The brushed foils are applied to domestic electrical goods, automobiles, and cosmetic packaging to replicate a brushed metal surface (such as the surface of a stainless steel appliance). The brushed patterns are embossed into the foil prior to importation and are continuous in nature and appear unbroken across the entire surface of the imported merchandise. The foils are constructed of four layers:
Polyethylene terephthalate (PET) film;
Release coat;
Metallized layer (aluminum or chromium); and
Adhesive sizing coat.
The brushed foils are applied to substrate materials, mostly plastic, by using a stamping machine to apply heat and pressure to the foil. The stamping machine uses a non-engraved die that does not impart any design elements, marks, or images onto the foil. Either a rolled or vertical stamping method may be used. Upon application of the brushed product to the substrate, the PET layer is discarded from the foil while the brushed image remains on the surface of the substrate.
Information on the brushed stamping foils can be found on the importer’s website at www.kurzusa.com and on the manufacturer’s website at www.kurz.de/en/. The importer refers to the subject merchandise on its US website as “hot stamping foils” and notes:
“Hot stamping foils are ideal for enhancing the appearance of
plastic surfaces. Why? Because they allow exacting decoration
combined with superior edge definition resulting in a high-class appearance of brilliant quality.
Whether you are interested in matt or brushed, metallic or unicolors,
a single image or continuous designs - KURZ hot stamping foils always visual appeal.”
ISSUE:
Whether the subject brushed foils are classified under subheading 3212, HTSUS, as stamping foils, or under heading 4908, HTSUS, as transfers (decalcomanias)”?
LAW AND ANALYSIS:
This matter is protestable under 19 U.S.C. 1514(a)(2) as a decision on classification and the rate and amount of duties chargeable. The protest was timely filed on October 9, 2013, within 180 days of liquidation, pursuant to 19 U.S.C. 1514(c)(3). Further review of Protest 1512-13-100089 was properly accorded to Protestant pursuant to 19 CFR 174.24. Pursuant to §174.25(b), Protestant alleges that this protest involves a question of law that CBP has never ruled upon.
Classification under the HTSUS is in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods will 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 will then be applied in order.
The following provisions of the HTSUS are under consideration:
3212 Pigments (including metallic powders and flakes) dispersed in nonaqueous media, in liquid or paste form, of a kind used in the manufacture of paints (including enamels); stamping foils; dyes and other coloring matter put up in forms or packings for retail sale:
3212.10 Stamping foils
4908 Transfers (decalcomanias):
4908.90 Other
Note 6 to Chapter 32, HTSUS, provides:
“The expression "stamping foils" in heading 3212 applies only to thin sheets of a kind used for printing, for example, book covers or hat bands, and consisting of--
(a) Metallic powder (including powder of precious metal) or
pigment, agglomerated with glue, gelatin or other binder; or
(b) Metal (including precious metal) or pigment, deposited on a
supporting sheet of any material.”
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While neither 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. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 32.12 provides, in relevant part:
“(B) STAMPING FOILS
These products (also known as blocking foils) consist of thin sheets of either:
(1) Metallic powder (including powder of precious metal), or pigment, agglomerated with glue, gelatin or other binder, or
(2) Metal (including precious metal) or pigment, deposited by vaporisation, cathodic sputtering, etc., on a supporting sheet of any material (e.g., paper, plastics).
They are used, with the application of pressure (and generally of heat), for printing book covers, hat bands, etc., by hand or machine.”
EN 49.08 provides, in relevant part:
“Transfers (decalcomanias) consist of pictures, designs or lettering in single or multiple colours, lithographed or otherwise printed on absorbent, lightweight paper (or sometimes thin transparent sheeting of plastics), coated with a preparation, such as of starch and gum, to receive the imprint which is itself coated with an adhesive. This paper is often backed with a supporting paper of heavier quality. The designs are sometimes printed against a background of metal leaf.
When the printed paper is moistened and applied with slight pressure to a permanent surface (e.g., glass, pottery, wood, metal, stone or paper), the coating printed with the picture, etc., is transferred to the permanent surface.
This heading also covers vitrifiable transfers, i.e. transfers printed with vitrifiable preparations of heading 32.07.
Transfers may be used for decoration or utility purposes, e.g., for decorating pottery or glass, or for marking various articles such as vehicles, machines and instruments.
* * *
The heading also excludes transfer paper of the types known as stamping foils or blocking foils, prepared with a coating of metal, metal powder or pigment, and used for printing book covers, hat bands, etc. (heading 32.12). Other transfer papers, as used in lithographic work, fall in heading 48.09 or 48.16 as appropriate.”
As EN 49.08 excludes “stamping foils” of heading 3212, and such exclusion is consistent with the heading text, we must first determine whether the subject brushed foils are classifiable in heading 3212, HTSUS, before we can consider whether they meet the terms of heading 4908, HTSUS. As noted above, the subject merchandise contains a metalized layer that is applied to a plastic substrate by using a stamping machine to apply heat and pressure to the foil in accordance with Note 6 to Chapter 32 and EN 32.12. As such, the subject brushed stamping foils are completely described by heading 3212, HTSUS.
In support of its assertion that the subject brushed foils are classifiable in heading 4908, HTSUS, Protestant argues that the stamping machine uses a non-engraved die that does not impart any design elements, marks, or images onto the foil. In support of this argument, Protestant cites to New York Ruling Letter (NY) N808304, dated March 30, 1995, which was issued to the Protestant’s former corporate entity (Kurz-Hastings), for the proposition that CBP has ruled that stamping foils with images printed on the surface before importation are classified in heading 4908, HTSUS. In NY 808304, CBP classified a “Touchwood Transfer finish” in heading 4908, HTSUS. Protestant notes that in that ruling, CBP seemed to distinguish between HTSUS headings 3212 and 4908 when, “[T]he shape of the character, mark, or design being created is dependent essentially on the configuration of the stamping device [Heading 3212] rather than on any pattern or image already on the foil [Heading 4908].” We do not find support for this argument. Neither the legal text to heading 3212, HTSUS, nor its EN, preclude foils that use a non-engraved die. In fact, the instant brushed foils are applied to a substrate in the precise manner described by the EN to heading 3212, HTSUS, i.e., heat and pressure are applied to the adhesive layer to effect change in the chemical composition of the adhesive, thus allowing the brushed foil to be bound to the target substrate. N808304 is also distinguished from the instant analysis in that the merchandise at issue in that ruling did not contain any metal and therefore was not classifiable in heading 3212, HTSUS. Protestant also cites to the following CBP rulings in support of classification of the subject merchandise under heading 4908, HTSUS: NY A86366, dated August 20, 1996, in which CBP classified a heat transfer label consisting of clear plastic film containing product logos; NY N173535, dated July 14, 2011, in which CBP classified a face tattoo; NY 865307, dated September 5, 1991, in which CBP classified a heat transfer plastic film used to decorate plastic and wood surfaces. CBP notes that the products classified in the aforementioned rulings are distinguishable from the instant merchandise in that they did not contain metal and are therefore not classifiable as stamping foils.
By application of GRI 1, the subject brushed stamping foils are classified as “stamping foils” in heading 3212, HTSUS, specifically subheading 3212.10, HTSUS (2012), as “Pigments…; stamping foils; dyes and other coloring matter put up in forms or packings for retail sale: stamping foils.” Accordingly, we need not address Protestant’s argument that the cold foils are classifiable pursuant to GRI 3.
HOLDING:
By application of GRI 1, the subject brushed stamping foils are classified as “stamping foils” in heading 3212, HTSUS, specifically subheading 3212.10, HTSUS (2012), as “[P]igments…; stamping foils; dyes and other coloring matter put up in forms or packings for retail sale: stamping foils.” The column one, general rate of duty is 4.7%.
You are instructed to DENY the protest. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP 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, CBP will make the decision available to CBP personnel and the public via www.cbp.gov, the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles Harmon, Director
Commercial and Trade Facilitation Division