CLA-2 RR:CR:GC 965610 HEF
Mr. Michael A. Johnson
Rodriguez O’Donnell Ross Fuerst Gonzalez & Williams
20 North Wacker Drive
Suite 1416
Chicago, Illinois 60606
RE: Reconsideration of NY H87523; Aluthene® aluminum foil
Dear Mr. Johnson:
This is in response to your letter dated April 5, 2002, requesting reconsideration of NY ruling letter H87523, issued to ICS Customs Service, Inc. on January 25, 2002, on behalf of Vaw Flexible Packaging, which classified top peel® aluminum foil under subheading 7607.11.60, Harmonized Tariff Schedule of the United States (HTSUS), as aluminum foil, not backed. A teleconference was held with you on August 30, 2002, and a submission dated September 17, 2002 was also considered in preparing this ruling. We have thoroughly reconsidered the classification of these articles and believe NY H87523 is correct. FACTS:
The merchandise at issue is aluminum foil known as “top peel”® or “Aluthene”®. Three types of Aluthene®, Aluthene® 40 II E 133/6, Aluthene® 50 II E 133/6 and 12, are the subject of this reconsideration. The merchandise is used as a peelable closure or operculum, (i.e., a non-permeable and sterilized lid or seal), for bottles and cups in the food packing industry. The product has two layers. The outer layer of Aluthene® 40 II E 133/6 is formed of an aluminum foil with a thickness of 0.038mm. The outer layers of Aluthene® 50 II E 133/6 and 12 are made of an aluminum foil with
a thickness of 0.048 mm. According to your submission, the foil has a second layer – “a co-extruded plastic sealing layer (a plastic film) laminated to one side, namely, the side which forms the inside of the packaging top for which the foil is used – the side which will face the food product being packaged.” This layer has a thickness of 0.030 mm in all three products, and is used for heat sealing to different types of plastics, glass or metal.
ISSUE:
Whether the top peel® aluminum foil is classified under subheading 7607.11.60, HTSUS, which provides for aluminum foil, not backed, of a thickness exceeding 0.01mm, or under subheading 7607.20.50, HTSUS, which provides for backed aluminum foil. 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 may then be applied.
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The HTSUS provisions under consideration are as follows:
Aluminum foil (whether or not printed, or backed with paper, paperboard, plastics or similar backing materials) of a thickness (excluding any backing) not exceeding 0.2mm:
Not backed:
Rolled but not further worked
Of a thickness exceeding 0.01mm
* * *
Backed:
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 7607.11.60, HTSUS.
EN 76.07 does not provide any information with respect to what “backed” means in this context. However, it instructs that EN 74.10, which pertains to copper foil, apply, mutatis mutandis, to heading 7607. EN 74.10 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.”
In the current case, the plastic layer bonds the foil to the container and provides a barrier between the foil and the contents of the container. You argue that the foil is backed with plastic to facilitate this bonding.
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:”…3. A layer of anything that covers a surface….”
In HQ 960276, 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.
The common and commercial meaning of “backed” as outlined above shows that the material to be backed is strengthened, for reasons such as those given in the Explanatory Notes. The instant plastic layer facilitates the subsequent treatment of the foil by forming the link or adhesive between the foil and the plastic cup. Nonetheless, it does not strengthen the foil, in fact, it melts into the plastic cup. See HQ 965210, dated March 20, 2002, for a similar result.
After careful reconsideration of this matter, we have determined that the subject aluminum foil is not backed. Therefore it is classified in subheading 7607.11.60, 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 0.2mm: Not backed: Of a thickness exceeding 0.01mm.”
HOLDING:
The subject merchandise is classifiable in subheading 7607.11.60, 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 0.2mm: Not backed: Of a thickness exceeding 0.01mm.” NY H87523 is affirmed.
Sincerely,
Myles B. Harmon, Acting Director
Commercial Rulings Division