OT:RR:CTF:CPMMA H320936 ACA
TARIFF NO: 7606; 7607
Mr. John M. Peterson, Esq.
Neville Peterson LLP
55 Broadway, Suite 2602
New York, New York 10006
RE: Revocation of HQ 953138; Modification of NY N284130; Tariff classification of reflective aluminum composite panels
Dear Mr. Peterson:
This letter is to inform you that U.S. Customs and Border Protection (CBP) has
reconsidered Headquarters Ruling Letter (HQ) 953138, dated March 18, 1993, regarding the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of the A-Look and A-Look EX, which are described as reflective aluminum composite panels. In HQ 953138, CBP classified the subject reflective aluminum panels in heading 7616, HTSUS, and specifically in subheading 7616.90.00, HTSUS (1993), which provides for “Other articles of aluminum: Other.” After reviewing HQ 953138 in its entirety, we find it to be in error.
We have also reviewed New York Ruling Letter (NY) N284130, dated September 15, 2017, regarding the classification, under the HTSUS, of reflective aluminum composite panels identified as the Inoxia/ID618-1 Aluminum Composite Panel (ACP) Speed Tile. In NY N284130, CBP classified the subject reflective aluminum composite panels in heading 7616, and specifically in subheading 7616.99.5190, HTSUSA (2017), which provides for “Other articles of aluminum: Other: Other: Other: Other: Other: Other.” After reviewing NY N284130 in its entirety, we find it to be in error with respect to the classification of the reflective aluminum composite panels. For the reasons set forth below, we are revoking HQ 953138 and modifying NY N284130.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed action was published on February 8, 2023, in Volume 57, Number 5, of the Customs Bulletin. No comments were received in response to this notice.
FACTS:
In HQ 953138, CBP described the subject merchandise as follows:
A-Look is a composite material made by laminating a polyethylene core between two sheets of aluminum alloy. The silver colored surface is electroplated with a layer of nickel and chromium, the bronze colored surface is electroplated with nickel alloy, and the gold colored surface is electroplated with brass. The back of A-Look is coated with an acrylic resin. A-Look EX is also a composite material made by laminating a polyethylene core between two sheets of aluminum alloy with a backing of fluoride resin. A-Look EX is specially designed for use outdoors and in locations exposed to high humidity.
Both articles are imported in standard sizes ranging from 2 feet square to 4 feet by 10 feet square, however they can be manufactured in any size and are advertised as an unbreakable, light weight, flexible, metallic mirror. Both products' reflective exterior surface may be etched or inscribed with decorative patterns. Both can be bent and applied to curved surfaces, machined to different sizes and shapes, and mechanically worked (e.g., by cutting, punching, grooving and bending). Both articles are used in a variety of places such as ceilings, walls, columns, furniture, displays, and as trims and accents.
The articles are sold in two different thicknesses, 3 millimeters (mm) and 2 millimeters (mm). The amount of polyethylene creates the difference in thickness. Polyethylene is the heaviest component of the 3 mm thick sample weighing 0.49 of a pound (lb.) per square foot (sq. ft.). The aluminum sheets weigh 0.28 lb. per sq. ft. The polyethylene costs $0.20 per sq. ft. and the aluminum sheets cost $0.34 per sq. ft. For the 2 mm sample, polyethylene predominates by weight, weighing 0.29 lb. per sq.ft., compared to the aluminum sheets which weigh 0.28 lb. per sq. ft. Aluminum costs $0.34 per sq. ft., while the polyethylene costs $0.12 per sq. ft. Trace amounts of nickel, brass, or chromium are electroplated onto the front aluminum sheet to give the different articles their varying colors.
In NY N284130, CBP described the subject merchandise as follows:
The Inoxia/ID618-1 Aluminum Composite Panel (ACP) Speed Tile consists of chips of metal, and measures approximately 12 inches in length by 12 inches in width by 0.175 inches in depth. The subject tile is a metal mosaic that is comprised of many square silvered colored pieces with self-adhesive pads on the back.
Laboratory analysis has determined that the silver colored metal is laminated aluminum, and that each piece is composed of two aluminum covers and a black plastic piece in the middle.
ISSUE:
Whether the subject reflective aluminum composite panels are classified in heading 7606, HTSUS, as aluminum sheets; heading 7607, HTSUS, as aluminum foil; or in heading 7616, HTSUS, as other articles of aluminum.
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 2023 HTSUS provisions at issue are as follows:
7606 Aluminum plates, sheets and strip, of a thickness exceeding 0.2 mm:
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:
7616 Other articles of aluminum:
* * * * * *
Note 9(d) to section XV provides as follows:
9. For the purposes of chapters 74 to 76 and 78 to 81, the following expressions have the meanings hereby assigned to them:
. . .
(d) Plates, sheets, strip and foil
Flat-surfaced products (other than the unwrought products), coiled or not, of solid rectangular (other than square) cross section with or without rounded corners (including "modified rectangles" of which two opposite sides are convex arcs, the other two sides being straight, of equal length and parallel) of a uniform thickness, which are:
- of rectangular (including square) shape with a thickness not exceeding one-tenth of the width;
- of a shape other than rectangular or square, of any size, provided that they do not assume the character of articles or products of other headings.
Headings for plates, sheets, strip, and foil 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 at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HS and are thus useful in ascertaining the proper classification of merchandise. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 76.06 provides as follows:
These products, which are defined in Note 9 (d) to Section XV, correspond to similar goods made of copper. The provisions of the Explanatory Note to heading 74.09 apply therefore, mutatis mutandis, to this heading.
The heading does not cover :
(a) Foil of a thickness not exceeding 0.2 mm (heading 76.07).
(b) Expanded metal (heading 76.16).
EN 74.09, in turn, provides:
This heading covers the products defined in Chapter Note 1 (g) when of a thickness exceeding 0.15 mm.
Plates and sheets are usually obtained by the hot- or cold-rolling of certain products of heading 74.03; copper strip may be rolled, or obtained by slitting sheets.
All such goods remain in the heading if worked (e.g., cut to shape, perforated, corrugated, ribbed, channelled, polished, coated, embossed or rounded at the edges) provided they do not thereby assume the character of articles or of products of other headings (see Chapter Note 1 (g)).
The limiting thickness of 0.15 mm includes coatings of varnish, etc.
EN 76.07 states as follows:
This heading covers the products defined in Note 9 (d) to Section XV, when of a thickness not exceeding 0.2 mm.
The provisions of the Explanatory Note to heading 74.10 relating to copper foil apply, mutatis mutandis, to this heading.
Aluminium foil is used in the manufacture of bottle caps and capsules, for packing foodstuffs, cigars, cigarettes, tobacco, etc. Aluminium foil is also used for the manufacture of the finely divided powder of heading 76.03, in crinkled sheets for thermal insulation, for artificial silvering, and as a wound dressing in veterinary surgery.
The heading does not cover :
(a) Stamping foils (also known as blocking foils) composed of aluminium powder agglomerated with gelatin, glue or other binder, or of aluminium deposited on paper, plastics or other support, and used for printing book covers, hat bands, etc. (heading 32.12).
(b) Paper and paperboard for the manufacture of containers for milk, fruit juice or other food products and lined with aluminium foil (i.e., on the face which will form the inside of the containers) provided they retain the essential character of paper or paperboard (heading 48.11).
(c) Printed aluminium foil labels being identifiable individual articles by virtue of the printing (heading 49.11).
(d) Plates, sheets and strip, of a thickness exceeding 0.2 mm (heading 76.06). . .
EN 74.10 provides:
This heading covers the products defined in Note 9 (d) to Section XV when of a thickness not exceeding 0.15 mm.
Foil classified in this heading is obtained by rolling, hammering or electrolysis. It is in very thin sheets (in any case, not exceeding 0.15 mm in thickness). The thinnest foils, used for imitation gilding, etc., are very flimsy; they are generally interleaved with sheets of paper and put up in booklet form. Other 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. Foil remains in the heading whether or not it has been embossed, cut to shape (rectangular or otherwise), perforated, coated (gilded, silvered, varnished, etc.), or printed.
The limiting thickness of 0.15 mm includes coatings of varnish, etc., but, on the other hand, backings of paper, etc., are excluded.
* * * * * *
In HQ 953138 and NY N284130, CBP determined that the reflective aluminum composite panels were classified in heading 7616, HTSUS, as other articles of aluminum. In so holding, CBP concluded in both rulings that the subject merchandise are composite goods under GRI 3(b). Accordingly, the reflective aluminum composite panels were classified based upon the material that imparted the essential character, which was the aluminum. Furthermore, CBP determined that the subject merchandise do not conform with ENs 76.06 and 76.07, and are instead classified in heading 7616, HTSUS.
When merchandise consists of multiple components that are described in more than one heading, they are considered composite goods pursuant to GRI 3(b). GRI 3 states that when, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
…
(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
EN VIII to GRI 3(b), pg. 4, states that:
[t]he factor which determines essential character will vary as between different
kinds of goods. It may for example, be determined by the nature of the material
or component, its bulk, quantity, weight or value, or by the role of a
constituent material in relation to the use of the goods.
Here, we agree with the finding in HQ 953138 and NY N284130 that the aluminum component imparts the essential character of these articles. The A-Look and A-Look EX in HQ 953138 are described as reflective aluminum composite panels made of polyethylene cores between two sheets of aluminum alloy. The Aluminum Composite Panel (ACP) Speed Tiles in NY N284130 are described as square aluminum pieces with self-adhesive pads on the back. The CBP Laboratory determined that the silver colored metal used in the ACP Speed Tiles was laminated aluminum, and that each piece was composed of two aluminum covers and a plastic piece in the middle. We note that aluminum costs more than polyethylene. In addition, while the merchandise consists of a plastic middle component, both the front and back of the reflective aluminum composite panels are composed of aluminum. Furthermore, while polyethylene weighs more, it costs less and serves only as support for the aluminum.
After establishing in HQ 953138 that the aluminum component imparts the essential character, CBP determined that the subject merchandise is not classified as aluminum sheets or aluminum foil because it does not meet the descriptions outlined in the ENs. In so holding, CBP concluded that the A-Look and A-Look EX aluminum composite panels fell within heading 7616, HTSUS, as the subject merchandise is not covered by another heading of the chapter. Additionally, in NY N284130, CBP concluded that the ACP Speed Tiles are classifiable in heading 7616, HTSUS. We now find both these conclusions to be in error.
To determine which heading properly describes the aluminum component of the reflective aluminum composite panels for purposes of classifying the entire article under GRI 3(b), we turn to note 9(d) to section XV, which defines plates, sheets, strip and foil as: “Flat-surfaced products… coiled or not, of solid rectangular (other than square) cross section with or without rounded corners…of a uniform thickness” that are “of rectangular (including square) shape with a thickness not exceeding one-tenth of the width.” The ENs to heading 7606 and heading 7607 further clarify the scope of the two headings. EN 76.06 (and the corresponding EN 74.09) notes that “sheets” of aluminum remain in the heading if worked (e.g., cut to shape, perforated, corrugated, ribbed, channeled, polished, coated, embossed, or rounded at the edges), provided they do not thereby assume the character of articles or of products of other headings. Similarly, EN 76.07 (and the corresponding EN 74.10) states that foil of aluminum remains in the heading whether or not it has been embossed, cut to shape (rectangular or otherwise), perforated, coated (gilded, silvered, varnished, etc.), or printed.
Pursuant to GRI 3(b), the entire article must be classified as if it consisted only of the single component which imparts the essential character of the whole—in this case, the aluminum component. Accordingly, the reflective aluminum composite panels are classified based on the thickness of the aluminum component. Where the aluminum component has a thickness exceeding 0.2 mm, the entire article is classified in heading 7606, HTSUS, as aluminum sheets. On the other hand, where the aluminum component has a thickness not exceeding 0.2 mm, the entire article is classified in heading 7607, HTSUS, as aluminum foil. Not enough information was provided to CBP to determine the thickness of the individual layers of the reflective aluminum composite panels in HQ 953138 and NY N284130.
Where the reflective aluminum composite panels meet the criteria for sheets of aluminum of heading 7606, HTSUS, as described in note 9(d) to section XV and the ENs, and where the thickness of the aluminum component exceeds 0.2 mm, we find that they are properly classified as sheets of aluminum of heading 7606, HTSUS, under GRI 3(b). Classification at the subheading level by GRI 6 is dependent upon the shape of the aluminum composite panels and whether or not the panels are alloyed. Additionally, where the reflective aluminum composite panels meet the criteria for aluminum foil of heading 7607, HTSUS, as described in note 9(d) to section XV and the ENs, and where the thickness of the aluminum component does not exceed 0.2 mm, we find that they are properly classified as aluminum foil of heading 7607, HTSUS, under GRI 3(b). Classification at the subheading level by GRI 6 is dependent upon whether the aluminum composite panels are backed, and if not, whether or not they are rolled but not further worked.
HOLDING:
By application of GRI 3(b), the subject reflective aluminum composite panels with an aluminum component thickness exceeding 0.2 mm are classified in heading 7606, HTSUS, which provides for “Aluminum plates, sheets and strip, of a thickness exceeding 0.2 mm.”
By application of GRI 3(b), the subject reflective aluminum composite panels with an aluminum component thickness not exceeding 0.2 mm are classified in heading 7607, HTSUS, which provides for “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.”
In order to provide duty rates for the merchandise at issue, each item must be specifically described and identified for purposes of classification. The text of the most recent HTSUS and the accompanying duty rates are provided at https://hts.usitc.gov/current.
On March 8, 2018, Presidential proclamations 9704 and 9705 imposed additional tariffs and quotas on a number of steel and aluminum mill products. Exemptions have been made on a temporary basis for some countries. Quantitative limitations or quotas may apply for certain exempted countries and can also be found in Chapter 99. Additional duties for steel of 25 percent and for aluminum of 10 percent are reflected in Chapter 99, subheading 9903.80.01 for steel and subheading 9903.85.01 for aluminum. Products classified under heading 7606 and 7607, HTSUS, may be subject to additional duties or quota. At the time of importation, you must report the Chapter 99 subheading applicable to your product classification in addition to the Chapter 76 subheading listed above. The Proclamations are subject to periodic amendment of the exclusions, so you should exercise reasonable care in monitoring the status of goods covered by the Proclamations and the applicable Chapter 99 subheadings.
EFFECT ON OTHER RULINGS:
HQ 953138, dated March 18, 1993, is hereby revoked; and NY N284130, dated September 15, 2017, is hereby modified.
In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Yuliya A. Gulis, Director Commercial and Trade Facilitation Division