CLA-2 OT:RR:CTF:TCM H034938 HkP
Ms. Janet Kim
United Customshouse Brokers, Inc.
5777 W. Century Blvd. Suite 510
Los Angeles, CA 90045
RE: Revocation of HQ 954591; ice cream wrapping material
Dear Ms. Kim:
This is in reference to Headquarters Ruling Letter (“HQ”) 954591, issued to you on August 23, 1993, concerning the classification of ice cream wrapping material under the Harmonized Tariff Schedule of the United States (“HTSUS”). In that ruling the U.S Customs Service, (now “U.S. Customs and Border Protection” (“CBP”)) classified the ice cream wrapping material under heading 7607, specifically in subheading 7607.20.10, HTSUS, as “backed” aluminum foil, by application of GRI 1. We have reviewed HQ 954591 and found that this decision is incorrect. For the reasons set forth below, we hereby revoke HQ 954591.
Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. §1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation was published on September 4, 2008, in the Customs Bulletin, Volume 42, No. 37. One comment was received in response to this notice.
FACTS:
The merchandise at issue is described in HQ 954591 as follows:
The top layer of the wrapping is a clear sheet of polypropylene with reverse printing on one side. The printed polypropylene layer is then laminated to aluminum foil, which is laminated to paper through the use of an intermediate layer of wet polyethylene. The back of the paper is then coated with a hot melt. The paper and plastic backing adds strength to the aluminum foil facilitating its use as wrapping for ice cream. The finished material has a thickness of 0.075 mm.
We have also consulted the original file which contains the following relevant information on the cost breakdown of raw materials, including as percentages of total expenses (approximate figures used):
Oriented polypropylene - $3/roll (4%)
7 micron aluminum foil - $13/roll (18%)
15 micron wet lamination (polyethylene) - $1.50/roll (2%)
25G/sq. meter paper - $6/roll (8.5%)
14G/sq. meter hot melt - $8/roll (11.5%)
Based on our research, “hot melt” is generally described as an adhesive which becomes liquid at high temperatures and reverts to a solid state at normal temperatures. In addition, aluminum foil is generally used in food packaging as a moisture and oxygen transmission barrier to aid in food preservation.
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 2 through 6 may then be applied in order.
The HTSUS provisions under consideration are as follows:
3921 Other plates, sheets, film, foil and strip, of plastics:
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:
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:
Not backed:
7607.19 Other:
Other:
7607.19.60 Other .....
7607.20 Backed:
7607.20.50 Other …..
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 (Aug. 23, 1989).
In our proposed ruling, we noted that aluminum foil which is combined with another material but that is not backed or coated can only be classified in heading 7607, HTSUS, on the basis of GRI 3 as a composite good.
According to the comment received, CBP’s finding above is inconsistent with definitions of “backed” previously relied upon by the agency. Commenter notes that because the term “backed” is not defined in the HTSUS or the ENs, CBP has, in the past, relied on information from the aluminum industry and explanations of the use of backing found in the ENs. See HQ 960276, dated August 1, 1997, and HQ 966769, dated Jan. 5, 2005. According to Commenter, none of the definitions cited limit the use of the term “backed” to a single side of the article. In this case, argues Commenter, both backing materials used in the ice cream wrapper (OPP and paper) are composed of materials that have been specifically enumerated as exemplars of backing material. Further, each of these materials is a coherent substrate that is applied to the aluminum foil through a laminating process. Accordingly, the ice cream wrapping material meets the requirements for backed foil as defined by the aluminum industry and favorably cited by CBP in HQ 960276. Based on the foregoing, Commenter is of the view that the ice cream wrapping material is classified as “backed aluminum foil” under subheading 7607.20, HTSUS, by application of GRI 1.
Heading 7607, HTSUS, provides for aluminum foil, whether or not backed. As noted by Commenter, the tariff does not define the term “backed”. When a tariff term is not defined by the HTSUS or the legislative history, its correct meaning is its common, or commercial, meaning. Rocknel Fastener, Inc. v. United States, 267 F.3d 1354, 1356 (Fed. Cir. 2001). "To ascertain the common meaning of a term, a court may consult 'dictionaries, scientific authorities, and other reliable information sources' and 'lexicographic and other materials.'" Id. (quoting C.J. Tower & Sons of Buffalo, Inc. v. United States, 673 F.2d 1268, 1271, 69 C.C.P.A. 128 (C.C.P.A. 1982); Simod Am. Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989)). The Random House Dictionary of the English Language defines “backing” as “that which forms the back or is placed at or attached to the back of anything to support, strengthen, or protect it. The aluminum industry defines the term “backed foil” as “a lamination composed of foil and a coherent substrate. The substrates 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.” Cited in HQ 965210, March 20, 2002; HQ 966769, January 5, 2004. Based on these sources, CBP has previously found that the word “backed” is defined, in pertinent part, as “having a back, setting or support”. Id. We now find that the Oxford English Dictionary (2008) defines the noun “back” as: “3. a. gen. That side or surface of any part … of any object, which answers in position to the back; that opposite to the face or front, or side approached, contemplated or exposed to view; e.g. the back of the head, of the leg; the back of a house, door, picture, bill, tablet, etc.” Also, “5. a. The side of any object away from the spectator, or spectators generally, the other or far side. at the back of: behind, on the farther side of[.]” Furthermore, EN 74.10 (which applies, mutatis mutandis, to heading 76.07 (see EN 76.07)) explains that “backing” may be added to a good to facilitate handling or transport or in order to facilitate subsequent treatment. Based on the common and commercial meaning of the word “backed” and the explanation provided in the ENs, we find that foil to one side of which a coherent substrate has been added (the “back”) in order to strengthen, support, or protect the foil or to facilitate handing, transport or subsequent treatment may be classified in heading 7607 as “backed” foil on the basis of GRI 1.
Commenter also argues that there is no legal authority to support CBP’s “limited interpretation of the term backed.” As previously noted, the Court of Appeals for the Federal Circuit has instructed that when a tariff term is not defined by the HTSUS or the legislative history, its correct meaning is its common, or commercial, meaning. See Rocknel Fastener. We have relied on the common and commercial meaning of the term “backed”. Contrary to Commenter’s assertion, our reliance on these terms is not inconsistent with definitions that we have previously used but merely serves to clarify our understanding of the term “backed.”
For these reasons, we find that the ice cream wrapping material is not described by the term “backed”. Although the plastic layer and the paper layer are added to the foil for strength and to support, protect, and facilitate handling, transport and subsequent treatment of the foil, the plastic layer is added to one side of the foil and the paper layer to the other. Therefore, the foil cannot properly be considered to be “backed”. Consequently, the ice cream wrapping material cannot be classified in heading 7607, HTSUS, using a GRI 1 analysis.
Finally, Commenter argues that our proposed holding (classification of the ice cream wrapping material under heading 7607, HTSTS, by application of GRI 3) is inconsistent with our classification decision in NY J84648, dated July 3, 2004. In that ruling, one of the products at issue and of relevance here was described as:
Capsteril® PAF 212 … a tri-laminate of PET, aluminum foil and peelable HDPE. This foil gives a peelable sealing to the PE containers. The aluminum foil and peelable HDPE are of the same thickness. The PET layer makes the foil extra tear resistant.
CBP classified this product in subheading 7607.20.50, HTSUS, as backed aluminum foil. Commenter points out that given the similarities between the ice cream wrapping material and the tri-laminate lid, CBP is further confusing the issues surrounding the proper classification of layered aluminum packaging materials.
Upon review of file NY J84648, CBP has discovered that the PET and HDPE layers are on either side of the foil. As such, CBP has initiated action under 19 U.S.C. § 1625(c), by which CBP is proposing to modify NY J84648 as it relates to the classification of Capsteril® PAF 212.
The wrapping at issue is a composite good consisting of layers of coated paper, classified under heading 4811, HTSUS, aluminum foil, classified under heading 7607, HTSUS, and plastic, classified under heading 3921, HTSUS, adhered together. There is no heading that describes this good in its entirety. 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. EN (VIII) to GRI 3(b) explains that the 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. After examining the wrapping, we find that its essential character is imparted by the aluminum layer, by virtue of its cost and its use in relation to preserving the qualities of the ice cream it is used to wrap. Accordingly, the ice cream wrapping material is classified under heading 7607, HTSUS, by application of GRI 3(b).
HOLDING:
By application of GRI 3(b), the ice cream wrapping material is classified under heading 7607, HTSUS. It is specifically provided for in subheading 7607.19.60, HTSUS, which provides for: “Aluminum foil (whether or not printed, or backed with paper, paperboard, plastics or similar backing materials) of a thickness not exceeding 0.2 mm: Not backed: Other: Other: Other.” The column one, general rate of duty is 3% ad valorem.
EFFECT ON OTHER RULINGS:
HQ 954591 is hereby revoked. In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division