CLA-2 RR:CR:GC 966769 NSH

Mrs. Venetia Huffman
C V International, Inc.
#13 Interstate Corporate Center
Suite 141
Norfolk, VA 23502

RE: Reconsideration of NY J84648; Aluminum foil

Dear Mrs. Huffman: This is in response to your letter of September 19, 2003, requesting reconsideration of NY J84648, dated July 3, 2003, on behalf of Vaassen Flexible Packaging BV, on the classification of aluminum foil under the Harmonized Tariff Schedule of the United States (HTSUS). Your letter has been referred to this office for reply.

FACTS:

The subject merchandise at issue is aluminum foil, of which two types are under reconsideration:

PS CAL 620 is an aluminum foil with an acid resistant layer that seals to PS and PET containers. The foil contains a print primer on its top side, the total thickness of which is .0008 mm. On its bottom side is a hot seal (HS) primer, the total thickness of which is .002 mm and a HS lacquer, the total thickness of which is .005 mm. This foil is used as a lidding for blow-molded or injection molded cups and containers, providing a sterile closure, i.e. a conduction sealing. The total thickness of the foil, including the primer and lacquer, is .0428 mm, and it is not cut to shape. The foil is supplied on reels with a maximum width of 1000 mm.

Omniseal CAL 852 is an aluminum foil with a layer that seals to PET, PS, PVC, PP and PAN (Barex®) containers. The foil contains a print primer on its top side, the total thickness of which is .0008 mm. On its bottom side is a HS primer, the total thickness of which is .003 mm and a Combination HS lacquer, the total thickness of which is .005 mm. The foil is used as a lidding for blow-molded or injection molded cups and containers, providing a sterile closure in an aseptic filling process. The total thickness of the foil is .0458 mm and it is not cut to shape. The foil is supplied on reels with a maximum width of 1000 mm.

For both aluminum foil products, the lacquer provides the product with the ability to seal, bonding the foil to a container. Typically, these two products will be used as packaging for dairy products, fruit juices, soups, sauces, etc.

On July 3, 2003, Customs issued NY J84648, classifying five aluminum foil items. Three of the items, Capsteril® PAL 811, Capsteril® PAF 212 and Capsteril® NAF 211, were classified under subheading 7607.20.50, HTSUS. However, the subject aluminum foil items, PS CAL 620 and Omniseal CAL 852, were classified in subheading 7607.19.60, HTSUS, which provides for “[a]luminum 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: [n]ot backed: [o]ther: [o]ther: [o]ther. You contend that due to the lacquer on the bottom side of the foil these two items are classified under subheading 7607.20.50, HTSUS, which provides for “[a]luminum 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: [b]acked: [o]ther.”

ISSUE:

Whether the subject aluminum foil is properly classified under subheading 7607.19.60, HTSUS, which provides for aluminum foil, not backed, or under subheading 7607.20.50, HTSUS, which provides for backed aluminum foil.

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the remaining GRIs 2 through 6.

The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff 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.

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 0.2 mm:

Not backed:

Other:

Other:

Other

* * * * * *

7607.20 Backed:

7607.20.50 Other

As stated above, the issue here is whether or not the aluminum foil is considered “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 7607.19.60.

GRI 6 states, in pertinent part, that the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to GRIs 2 through 5, on the understanding that only subheadings at the same level are comparable.

Heading 7607, HTSUS, provides for aluminum foil whether or not backed with paper, paperboard, plastics or similar backing material. However, the EN to Chapter 76 does not provide any information regarding the definition of “backed” and instead references the EN to heading 7410, relating to copper foil, as applicable, mutatis mutandis, to Chapter 76. Customs believes EN 74.10 is instructive with respect to the materials used in foils that are considered “backed” and serves as a partial explanation of the reason why foils are “backed.” According to EN 74.10, 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. To further determine the purpose of these materials as applicable to defining a foil as “backed,” it is necessary to understand the meaning of the term “backed.”

A tariff term that cannot be defined by using the HTSUS or the ENs is interpreted in accordance with its common and commercial meaning. Nippon Kogaku (USA), Inc. v. United States, 69 C.C.P.A. 89, 673 F.2d 380 (1982). 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 Random House Dictionary of the English Language (unabridged ed.; 1973) further provides the following definitions that are pertinent to this analysis: “backing” is defined, in pertinent part, as: “…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: “1. Having a back, setting, or support (often used in combination)…”; “coating” is defined, in pertinent part, as: “1. A layer of any substance spread over a surface…” In considering the ENs to headings 7607 and 7410, respectively, the primer and lacquer on the bottom side of the foil is not composed of paper, paperboard, plastics or similar backing materials, either for convenience of handling or transport, or in order to facilitate subsequent treatment. Rather, the addition of the primer and lacquer to the foil serves as a surface finishing treatment, the purpose of which is for sealing containers and printing.

In further considering the applicable definitions for the terms “backed” and “backing,” it is apparent that the lacquer and primer do not satisfy them. The primer and lacquer on the bottom side of the foil are not to be considered backing material that is used to support, strengthen or protect the foil, as would be the case with a material such as paper, paperboard, plastics, or a similar backing material. More accurately, as previously stated, it is a surface finishing treatment for the purpose of sealing containers. The lacquer is not a coherent substrate, but rather a thin coating measuring only .003 mm and .005 mm in thickness, respectively, that is applied in liquid form and hardens subsequent to its application. As such, in consideration of the definitions provided, the primer and lacquer is considered a “coating.” Although this coating enhances the usefulness of the foil, such as keeping it resistant to corrosion, it is not applied for the purpose of strengthening the foil or facilitating subsequent treatment, such as transporting the foil, and thus does not fall under the definition of “backed.”

You note that, for both aluminum foil products, the coating supports “the aluminum foil in its properties for usage.” However, the fact that this coating lends a certain utility to the aluminum foil is not dispositive of its designation as a backing.

For these reasons, we conclude that both aluminum foil products are classified in subheading 7607.19.60, HTSUS, as “[a]luminum 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: [n]ot backed: [o]ther: [o]ther: [o]ther.”

HOLDING:

PS CAL 620 and Omniseal CAL 852 are classified in subheading 7607.19.60, HTSUS, as “[a]luminum 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: [n]ot backed: [o]ther: [o]ther: [o]ther.”

EFFECT ON OTHER RULINGS:

NY J84648 is AFFIRMED.


Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division