CLA-2 OT:RR:CTF:TCM H022685 CkG
Michael K. Tomenga
Neville Peterson LLP
1400 16th St. NW
Suite 350
Washington, DC 20036
RE: Reconsideration of NY N018954; classification of sandwich wrap from Canada
Dear Mr. Tomenga,
This is in response to your letter of January 25, 2008, requesting reconsideration of NY N018954, dated November 19, 2007, regarding the tariff classification of sandwich wrappers from Canada. NY N018954 classified sandwich wrappers from Canada, imported by Groupe Deluxe of Montreal, Canada, in subheading 7607.20.1000, HTSUS. In your request for reconsideration, you claim that the articles should have been classified in Chapter 48 or 49, specifically headings 4811, 4821, or 4911, HTSUS. For the reasons set forth below, we affirm the decision in NY N018954.
FACTS:
Five samples were submitted with the original ruling request, of models 471044, 471045, 471250, 471251 and 471429. The imported sandwich wrappers are for use in the fast food industry. They consist of a layer of aluminum foil, laminated with an adhesive to a layer of machine glazed or bleached paper. The wrappers are cut to shape and printed with the restaurant name, sandwich name, and any identifying logos, pictures or descriptions of the sandwich wrapped within, as specified by the client. The aluminum layer faces the customer. The paper component is .075 millimeters thick, and the aluminum foil is .00625 mm thick. The composition by weight is 42% aluminum and 58% paper.
ISSUE:
Whether the subject sandwich wrappers are classifiable as backed aluminum foil, as provided for in Heading 7607, HTSUS, as articles of paper and paperboard of Headings 4811 or 4821, HTSUS, or as “other printed matter” of Heading 4911, HTSUS.
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, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The HTSUSA provisions at issue are as follows:
Chapter 48, Note 2(n) provides, in pertinent part:
This chapter does not cover:
(n) Metal foil backed with paper or paperboard (generally section XIV
or XV);
Chapter 48, Note 12 states:
“Except for the articles of heading 4814 or 4821, paper, paperboard, cellulose wadding and articles thereof, printed with motifs, characters or pictorial representations, which are not merely incidental to the primary use of the goods, fall in chapter 49.”
* * * * *
4811: Paper, paperboard, cellulose wadding and webs of cellulose fibers, coated, impregnated, covered, surface-colored, surface-decorated or printed, in rolls or rectangular (including square) sheets, of any size, other than goods of the kind described in heading 4803, 4809 or 4810.
4811.90: Other paper, paperboard, cellulose wadding and webs of cellulose fibers:
4811.90.90: Other…….
4811.90.9050: Other…….
* * * * *
4821: Paper and paperboard labels of all kinds, whether or not printed
4821.90: Other:
4821.90.4000: Other…….
* * * * *
4911: Other printed matter, including printed pictures and photographs:
Other:
4911.99: Other:
Other:
4911.99.8000: Other…….
* * * * *
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:
7607.20: Backed:
7607.20.1000: Covered or decorated with a character, design, fancy effect
or pattern
* * * * *
You suggest classification of the subject article in Chapter 48 or 49, as an article of paper pulp, paper or paperboard (Chapter 48), or, alternatively, as “other printed matter” (Chapter 49). You argue that the subject article is not classified in heading 7607, HTSUS, but instead in headings 4811, 4821 or 4911, HTSUS. Heading 4811, HTSUS, provides for coated or covered printed paper. Heading 4821 provides for “Paper and paperboard labels of all kinds, whether or not printed.” Heading 4911, HTSUS, provides for “Other printed matter.”
Exclusion note 2(n) to chapter 48 excludes there from metal foil backed with paper or paperboard (generally section XIV or XV). In section XV, Heading 7607, HTSUS, provides for aluminum foil whether or not backed with paper, paperboard, plastics or similar backing material. Subheading 7607.20.1000, HTSUS, provides for backed aluminum foil covered or decorated with a character, design, fancy effect or pattern. In New York Ruling Letter (NY) N018954, CBP determined that the paper joined to the back of the aluminum foil placed the subject wrappers in heading 7607, as backed aluminum foil. Given the exclusion note, we must first consider whether the goods are classified in heading 7607, HTSUS, before considering classification in other headings of the nomenclature.
In your request for reconsideration, you argue that the subject sandwich wrappers are not “backed” for the purposes of heading 7607, HTSUS. Heading 7607 does not define “backed.” However, EN 76.07 does reference the EN to heading 7410, relating to copper foil, as applicable, mutatis mutandis, to Chapter 76. 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. 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.”
You contend that the subject wrappers are not “backed” according to EN 74.10 because the paper adhered to the foil is not used to facilitate handling or transport of the foil. You argue that the foil is strong and flexible enough for transport, printing and wrapping without the addition of the paper. First of all, we note that the ENs, while the primary source of guidance on the interpretation of the Harmonized System and its terms, are not the exclusive source of such guidance; also, the list of uses for backing materials provided in EN 74.10 is not exhaustive, as the “etc.” at the end of said list would indicate. Nevertheless, the product does in fact conform to the description of “backed” foil in EN 74.10. On examination of the backed and unbacked foil samples, we find that the paper keeps the foil from tearing, and therefore does add strength and support to the foil. This would be highly desirable in wrapping sandwiches. Furthermore, according to information obtained from the metal industry, foil gages less than .025 mm in width, such as the product at issue, are generally laminated to paper or plastic for support. Without the additional support, such foil lacks the strength to withstand the rigors of shipping and handling. See http://www.key-to-metals.com/Article119.htm.
In HQ 960276, dated August 1, 1997, CBP stated 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.”
In HQ 966769, dated January 5, 2004, CBP also cited to The Random House Dictionary of the English Language (unabridged ed. 1973; now renamed as Random House Webster's Unabridged Dictionary), which 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: “1. a layer of any substance spread over a surface . . .”; “coat” is defined in pertinent part as follows: “. . . 3. A layer of anything that covers a surface . . .”
You cite to several cases in support of the importer’s position, such as HQ 966769, in which aluminum foil coated with lacquer was not considered backed. CBP held in this case that “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…. As such, in consideration of the definitions provided, the primer and lacquer is considered a ‘coating.’” Given the distinction between “backing” and “coating” noted in the above cases and by the Random House Dictionary, HQ 966769 is easily distinguished from the case before us. The aluminum foil in the subject wrappers is “coated” with adhesive and “backed” with paper.
You further contend that the instant wrappers are not classifiable as aluminum foil of heading 7607, whether backed or not, because they are excluded from that heading by virtue of Explanatory Note 76.07(c), which states that 7607 does not cover “Printed aluminium foil labels being identifiable individual articles by virtue of the printing (heading 49.11).” The goods are not labels. The printing on both the aluminum and paper sides of the subject article is incidental to the primary use of the product as a food wrapper. The instant article is not an “identifiable individual article” by virtue of its printing, nor is it classified as printed matter of heading 4911. See also HQ 087991, dated January 10, 1991. The exclusion of Explanatory Note 76.07(c) therefore does not apply.
In raising the above EN exclusion, you suggest that note 12 to Chapter 48 applies. It states: “Except for the articles of heading 4814 or 4821, paper, paperboard, cellulose wadding and articles thereof, printed with motifs, characters or pictorial representations, which are not merely incidental to the primary use of the goods, fall in chapter 49.” Similarly, EN 49.11(b) excludes from heading 4911 “Goods of heading 39.18, 39.19, 48.14 or 48.21 or printed paper products of Chapter 48 in which the printed characters or pictures are merely incidental to the primary use of the products.” The printing of the paper component of the subject wrappers is incidental, given that the paper layer faces the sandwich, not the customer. Only the aluminum layer is visible to the customer without unwrapping the sandwich.
This argument ignores the distinction between a label and a wrapper. A wrapper may be printed with a logo or even identifying information without being considered a label. The printing on the instant wrappers does not, therefore, exclude them from the scope of heading 7607, HTSUS. Moreover, the terms of the heading clearly include printed aluminum foil in heading 7607 by providing for “Aluminum foil(whether or not printed),” as does EN 76.07, which notes that “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 distinction between wrappers and labels has been addressed in HQ 963603, dated February 15, 2000, in which paper wrapping of Pez candies was classified in Heading 4821, as paper and paperboard labels. The labels were printed with the Pez logo, the identifying words (lemon candy, orange candy, sugar-free lemon candy, etc.), the name and address of the candy's manufacturer, a weight statement and a list of ingredients. CBP noted, however, that “This is not to say that any paper item purporting to be a label is classifiable within heading 4821. In this instance, the wrappers/labels are large and contain all the information and colors required and reasonably expected on a label. There is no mistaking the fact that the subject goods are clearly intended to be labels.” Applied to the instant case, this reasoning compels the opposite result. The printing on the subject wrappers does not provide a comparable level of detail to the labels of HQ 963603. Therefore the value of the information printed on the subject wrappers is minimal compared to the role of the wrappers in preserving the quality of the food. In HQ 963603, on the other hand, the value of the printed label as a wrapper was minimal; the candies were actually wrapped first in foil, then in the printed paper. The paper did not protect or preserve the candy, unlike the instant wrappers, which maintain the temperature and moisture of the food.
In the instant case, the primary use to which the importer’s wrappers are put is to preserve the quality of the food. Multiple sources, including the importer’s own website, indicate that aluminum foil is generally used in the food industry (and elsewhere) for its thermal and conductive properties. For example, the key to metals database, supra, states as follows:
“Because it is an efficient reflector and low emitter of radiant heat, aluminum foil
is employed for packaging where the thermal insulating properties imparted by
these characteristics are advantageous. Despite these insulating effects, the
good thermal conductivity makes it possible to chill or heat aluminum packages
more rapidly than those with nonmetallic covering.”
The importer’s own website also emphasizes the thermal qualities of aluminum foil. The samples included with the ruling request are no longer available from the online product catalog; however, a line of similar products—the only products on the website that begin with the same 471 product code as the included samples—are available. These wrappers—product codes 471414, 471218, 471214, 471213, 471113, 471112 and 471111—are designated “thermo foil wraps.” The name certainly suggests that both the foil and its thermal properties are a key feature of the product. http://www.deluxepaper.com/new/v7/deluxe/index.php?comp=paper&lang=en§ion=catalog_paper&cat_id=1&sub_id=4&lvl2_id=5.
In support of classification under heading 4821 you cite to HQ 956733, dated 1995, in which a sheet of aluminum not exceeding .000275mm and laminated with a thin sheet of paper was classified in heading 4821, HTSUS. The product in HQ 956733 is dissimilar to the subject merchandise; in that case, the paper comprised 75% of the total weight of the label, and the aluminum only 21%. Moreover, only the paper side faced the customer; the aluminum served to give retention to the embossing of the paper, and did not show through the label’s printed surface.
Lastly, you claim that the subject sandwich wrappers must be classified in Section X, as articles of paper, by application of GRI 3(b). GRI 3(b) directs that composite goods consisting of different materials shall be classified as if they consisted of the material or component which gives them their essential character. You argue that it is the paper and not the aluminum which imparts the essential character of the subject merchandise.
The subject wrappers are fully described by the terms of heading 7607, as aluminum foil, printed and backed with paper. Since the goods are classifiable at GRI 1 in heading 7607, GRI 3(b) is not reached. Similar products consisting of a thin layer of aluminum adhered to a layer of paper or other material have been classified in subheading 7607.20.1000 by the following rulings: NY N006034, dated February 16, 2007; NY N003418, dated December 12, 2006; NY NI82901, dated June 12, 2002; NY A85024, dated July 16, 1996; HQ 958356, dated October 26, 1995; and HQ 954591, dated August 23, 1993.
HOLDING:
By application of GRI 1, the sandwich wrappers are classified under heading 7607, HTSUS. They are specifically provided for in subheading 7607.20.1000, 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: backed: covered or decorated with a character, design, fancy effect or pattern.” The column one, general rate of duty is 3.7% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N018954, dated November 19, 2007, is AFFIRMED.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division