CLA-2 OT:RR:CTF:TCM H217515 JPJ
Paul Stephan Mongillo
Port Director
United States Customs and Border Protection
Service Port-Champlain
237 West Service Road
Champlain, NY 12919
ATTN: Linda Gonyo-Horne, Senior Import Specialist
RE: Internal Advice Request No. 12/017; Tariff classification of Scapa 250 High Temperature Wire Harness Tape.
Dear Mr. Mongillo:
You requested internal advice with regard to the tariff classification of the “Scapa 250 High Temperature Wire Harness Tape” (“Scapa tape”) under the Harmonized Tariff Schedule of the United States (“HTSUS”). Your request was initiated by a submission dated April 2, 2012. This letter responds to your request.
FACTS:
The product at issue in this request for internal advice is called Scapa 250, which is a high temperature wire harness tape. It is used in the automotive market, and is described by Scapa North America (“Scapa”) as follows:
Scapa 250 is a high performance, heat reflective aluminum foil-backed glass cloth that is single coated with a high-temperature silicone adhesive. The tape is comprised of a laminate that includes layers of aluminum foil, woven fiberglass cloth and silicone adhesive. Scapa 250 tapes are typically used for high temperature applications, such as protective tape for electrical wires, battery cable and fluid lines.
Additionally, the website www.globalspec.com, provided by Scapa describes the Scapa 250 product benefits, in relevant part, as:
Ideal for wire harness applications requiring high temperature resistance, protective electrical wire harness wrapping (250° C, T6 temperature class) and battery cable and fluid line protection.
-Withstands extreme temperatures up to 500°F (250°C)
-SAE J2302 Thermal Effectiveness at 550C is 107C
-Hand tearable
-High tensile strength
-Non-flammable
The function of the Scapa 250 tape is to provide high temperature heat resistance for hoses, wire harness assemblies, and on other parts located in the engine compartment of an automobile. According to Scapa, the glass fiber cloth is laminated to the aluminum foil, and a layer of silicone adhesive is applied to the glass cloth to assist with adhesion. The aluminum foil reflects radiant heat. The glass fiber cloth provides heat resistance, and the product’s insulating qualities.
Figure 1 -- wire harness for an automobile
Example of a wire harness tape in use:
Figure 2
A sample of the Scapa 250 tape was submitted and analyzed by the CBP lab. The results provided by the CBP lab are as follows:
DESCRIPTION
A single roll of silver-colored tape. The tape was approximately 1 inch wide and the roll was approximately 1 inch thick. The tape was rolled around a spool having a diameter approximately 1 5/8 inches.
RESULTS
Chemical analysis confirmed the sample was comprised of non-conductive fiberglass laminated to aluminum foil approximately 34 micrometers thick. The fiberglass was coated with a silicone adhesive. The fiber glass was comprised of fibers that had an average diameter of approximately 4.5 micrometers. The exposed aluminum surface was coated with a compound that likely acts as a release agent.
The merchandise was entered under subheading 7019.51.9090, HTSUSA. The port of Champlain liquidated the merchandise under subheading 7019.90.1000, HTSUSA. Scapa believes the product is backed aluminum foil classified under subheading 7607.20.5000, HTSUSA.
ISSUE:
What is the classification of the Scapa 250 Tape?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be “determined according to the terms of the headings 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 be applied in order.
The following HTSUS provisions are under consideration:
7019 Glass fibers (including glass wool) and articles thereof (for example, yarn, woven fabrics):
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:
Chapter 76, note 1(d), HTSUS, provides in part, as follows:
Plates, sheets, strip and foil
Headings 7606 and 7607 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.
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the Harmonized System at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
Explanatory Note 76.07 states in part that:
[t]his heading covers the products defined in Chapter Note 1(d), when of a thickness not exceeding 0.2 mm.
[t]he provisions of the Explanatory Note to heading 74.10 relating to copper foil apply, mutatis mutandis, to this heading.
Explanatory Note 74.10 states in part that:
[o]ther 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. (emphasis added)
Scapa argues that the tape product is classified in heading 7607, HTSUS, by application of GRI 1. Scapa argues that the aluminum foil allows the tape to withstand extreme temperatures up to 500°F and to be non-flammable, while the layer of glass cloth provides strength and flexibility. Heading 7607 provides for aluminum foil backed with paper, paperboard, plastics or similar backing material. However, neither the Notes to Chapter 76, nor the ENs 74.10 and 76.07 are instructive with respect to the term "backed."
A tariff term that is not defined in the text of the HTSUS or the ENs is construed in accordance with its common and commercial meaning. Nippon Kogaku (USA) Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982). ). Citing various lexicographic sources, CBP noted in HQ 960276, dated August 1, 1997, that “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.”
Likewise, in both HQ H008142, dated November 11, 2008, and HQ H045859, dated February 5, 2009, CBP noted that:
The Random House Dictionary of the English Language defined “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, and 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 note that the Oxford English Dictionary (Oxford University Press, 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 handling, transport or subsequent treatment may be classified in heading 7607 as “backed” foil on the basis of GRI 1.
See also HQ H022685, dated June 9, 2009; HQ H034938, dated December 17, 2008.
Based on the common and commercial meaning of the word “backed” and the explanation provided in the ENs, it is our view that the Scapa tape product comprised of aluminum foil laminated to glass fiber cloth is not backed aluminum foil, and that the glass fiber cloth is not backing material to strengthen, support, or protect the aluminum foil or to facilitate the handling, transport or subsequent treatment of the aluminum foil.
The glass fiber cloth provides the high temperature resistance of the tape (up to 500° F/250° C, T6 temperature class) making the tape ideal for wire harness applications requiring high temperature resistance in an extremely high temperature environment. The website www.globalspec.com confirms that cloth reinforced with glass or fiberglass particles enhance heat resistance to over 300°F. Additionally, the glass fiber cloth is single coated with a high temperature silicone adhesive, and the same website confirms that silicone adhesives provide a high degree of flexibility and very high temperature resistance (600°F). According to the Scapa website at www.scapa.com/en/WireHarness, the wire harnessing has to withstand, among other conditions such as chemicals and abrasion, high temperature throughout the lifetime of the vehicle. Regarding the importance of heat protection, the same website confirms that PVC, PET or glass cloths offer different levels of resistance in high temperature environments. The website www.globalspec.com states that thermally insulating tapes provide electrical wire with insulation from heat, and are ideal for wiring near engines or furnaces. It is evident that the glass fiber cloth is not used as reinforcement for, or for the convenience of handling or transport of the aluminum foil. For these reasons, the tape product does not meet the definition of "backed" aluminum foil, and is not described by heading 7607. As an aside, the tape glossary on the Scapa website at www.scapa.com states that it is the aluminum foil itself that is used as tape backings.
Scapa cites several rulings for various aluminum foil products (other than wire harness tape products), that were classified in heading 7607, as backed aluminum foil. See e.g. HQ 960276, dated August 1, 1997 (polypropylene or polyester sandwiched between 2 sheets of aluminum foil for added strength; polypropylene or polyester provides strength to the laminate; the foil is reinforced for easier handling as a shielding material); with polyester or polypropylene laminated to one side); NY J88222, dated August 28, 2003 (aluminum foil laminated on one side to either a polyester film or an oriented polyethylene film; aluminum foil acts as shielding agent and PET gives foil strength and flexibility); NY N105323, dated June 9, 2010 (fabric consisting of aluminum foil coated on one side with a plastic film and backed on the other side with a woven polypropylene textile fabric; barrier fabric used as barrier against oxygen and moisture); NY J80010, dated January 24, 2003 (aluminum foil laminated to either oPP film or PP film on one side and coated with lacquers to be used as packaging materials); NY F84357, dated March 27, 2000 (polyurethane backing (PET film) bonded to aluminum foil by means of an adhesive, PET used to add strength to aluminum foil; backing reinforces aluminum foil to facilitate its use as packing materials); NY A85024, dated July 19, 1996 (aluminum foil laminated to a polyester film with a heat seal coating on the matte side used in a form, fill, seal machine for inner blister packaging); and NY A85092, dated July 19, 1996 (aluminum foil shapes laminated to a sheet of clear plastic film used in packaging applications). However, none of these rulings are dispositive of the classification of the wire harness tape product at issue because the backings on the various aluminum foil products were used either as reinforcement for or for the convenience of handling or transport of the aluminum foil, or in order to facilitate the subsequent treatment of the aluminum foil for use as packaging materials.
The Scapa tape is composed of aluminum foil of heading 7607, HTSUS, and glass fiber cloth of heading 7019, HTSUS. As such, the Scapa tape is not specifically provided for in any one heading. GRI 2(b) requires that the "classification of goods consisting of more than one material or substance shall be according to the principles of rule 3." GRI 3(a) states, in pertinent part, “when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods . . . those headings are to be regarded as equally specific . . ..” As each heading refers to part only of the Scapa tape, they are considered equally specific. The product cannot be classified according to GRI 3(a).
GRI 3(b) provides for “composite goods consisting of different materials or made up of different components . . .which cannot be classified according 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.” Explanatory Note VIII to GRI 3(b), states, “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.”
The Scapa tape product is a composite good. According to the product specifications provided by the importer, the glass fiber cloth makes up the bulk of the product (i.e. mass), and it is the base material, or substrate, of the product. The glass fiber cloth provides the heat resistance essential to the use of the Scapa tape in high temperature applications and as wire harness tape. The glass fiber cloth component provides the non-conductive properties critical to high temperature resistance applications. According to the findings of the CBP Lab analysis of the product, the glass fiber portion was found to be consistent with E-glass. E glass is used as a general purpose fiber when high heat resistance, among other properties, is required. It is the glass fiber cloth component that imparts the qualities, such as heat resistance, necessary for the Scapa tape to be used as intended. With respect to heat resistance, aluminum foil has a thermal conductivity several hundred times that of glass fiber. While the aluminum foil provides heat reflectance, it is the glass fiber cloth material that resists or insulates from the exposure to high temperatures. According to the nature of the glass fiber cloth in the Scapa tape, its bulk, and the role of the glass fiber cloth in relation to the use of the Scapa tape, the glass fiber cloth imparts the essential character of the Scapa tape for tariff purposes. The Scapa tape is classified in heading 7019, HTSUS, by application of GRI 3(b).
This is consistent with NY E88521, dated January 7, 2000, classifying a glass fiber tape used for insulation banding of armatures in motors and generators in heading 7019, HTSUS.
HOLDING:
Pursuant to GRIs 3(b) and 6, the Scapa 250 tape is classified in heading 7019, HTSUS, specifically under subheading 7019.90.10, HTSUS, as “Glass fibers (including glass wool) and articles thereof (for example, yarn, woven fabrics): Other: Woven”. The 2015 column one, rate of duty, is 4.8%.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division