HQ H241326
CLA-2 OT:RR:CTF:TCM HQ H241326 TSM
Mr. Jack Mlawski
Galvin and Mlawski
245 Fifth Avenue, Suite 1902
New York, NY 10016
RE: Reconsideration of NY N184607; Classification of polyethylene terephthalate film from the United Arab Emirates
Dear Mr. Mlawski:
This is in response to your request for reconsideration of New York Ruling Letter (NY) N184607, issued to JBF RAK, LLC, United Arab Emirates on October 11, 2011, concerning the tariff classification of polyethylene terephthalate film from the United Arab Emirates. In that ruling, U.S. Customs and Border Protection (“CBP”) classified the subject merchandise under subheading 3920.62.0090, Harmonized Tariff Schedule of the United States (“HTSUS”), which provides for “Other plates, sheets, film, foil and strip, of plastics, noncellular and not reinforced, laminated, supported or similarly combined with other materials: Of polycarbonates, alkyd resins, polyallyl esters or other polyesters: Of poly(ethylene terephthalate): Other.” In a letter dated February 25, 2013, you argued that the subject merchandise should be classified under subheading 3920.62.0050, HTSUS, which provides for “Other plates, sheets, film, foil and strip, of plastics, noncellular and not reinforced, laminated, supported or similarly combined with other materials: Of polycarbonates, alkyd resins, polyallyl esters or other polyesters: Of poly(ethylene terephthalate): Metallized PET film: Other.” We have reviewed NY N184607 and found it to be correct. For the reasons set forth below we hereby affirm NY N184607.
On November 5, 2015, a member of my staff contacted you regarding your meeting request. You requested time to contact your client about scheduling a meeting. Since that date, you have not contacted this office to schedule a meeting.
FACTS:
NY N184607, issued to JBF RAK, LLC, United Arab Emirates, describes the subject merchandise as follows:
The item is identified as Alox PET film. The product is described as clear polyethylene terephthalate (PET) film coated with aluminum oxide designed for use in the packing of various food products. The aluminum oxide coating creates a moisture and oxygen barrier that extends the shelf life of the packaged product. You have not specified the thickness of this performance enhancing layer. The film can be used in manufacturing laminates for overwraps, lids and retortable and microwavable pouches. Although you refer to the film as metallized, the aluminum oxide coating is not in the form of a metal.
In the request for reconsideration, dated February 25, 2013, JBF RAC LLC provided the following additional information about the subject Alox PET film:
… [T]he article is metallized with aluminum and antimony as well as aluminum oxide.
. . . . .
Metallized PET films are used in packaging applications. The metallized layer is applied to the PET film after the creation of the film using specialized metallizing production lines. In the metallizing process metal wire is heated and vaporized and the vapor dispersed onto the PET film. Like other metallized films, Alox metallized films are high barrier clear metallized Polyethylene Terephthalate (“PET”) films designed for use in packing of various food products where a high moisture and oxygen barrier is required. It is produced like other metallized films after the PET film is created, on metallizing machinery from aluminum wire that is heated and vaporized. When vaporized, some of the aluminum combines with oxygen to form aluminum oxide and along with aluminum and antimony (present in small amounts in the aluminum wire) that has been vaporized but not combined with oxygen are deposited onto the PET film. The layer consisting of aluminum, antimony and aluminum oxide provides the high barrier and transparent properties of Alox metallized films.
With its request for reconsideration JBF RAC LLC also stated that “greater than 6% by weight of the entire film (and not just the metallized layer) is aluminum and antimony metals,” providing a laboratory test to support that statement.
ISSUE:
Whether the Alox PET film under consideration should be classified under subheading 3920.62.0050, HTSUS, as “Other plates, sheets, film, foil and strip, of plastics, noncellular and not reinforced, laminated, supported or similarly combined with other materials: Of polycarbonates, alkyd resins, polyallyl esters or other polyesters: Of poly(ethylene terephthalate): Metallized PET film: Other,” or under subheading 3920.62.0090, HTSUS, as “Other plates, sheets, film, foil and strip, of plastics, noncellular and not reinforced, laminated, supported or similarly combined with other materials: Of polycarbonates, alkyd resins, polyallyl esters or other polyesters: Of poly(ethylene terephthalate): Other.”
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (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 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 GRI may then be applied.
The HTSUS provisions under consideration are as follows:
3920 Other plates, sheets, film, foil and strip, of plastics, noncellular and not reinforced, laminated, supported or similarly combined with other materials:
Of polycarbonates, alkyd resins, polyallyl esters or other polyesters:
* * *
3920.62.00 Of poly(ethylene terephthalate)
Metallized PET film:
* * *
3920.62.0050 Other
3920.62.0090 Other
We begin by noting that this dispute is at the ten-digit level of classification. Whether the subject Alox PET film is classified in subheading 3920.62.0050 will depend on whether it is “metallized” within the meaning of this subheading. The tariff term “metallized” is not defined in the HTSUS. When a tariff term is not defined by the HTSUS, “the term’s correct meaning is common meaning.” Mita Copystar Am. v. United States, 21 F.3d 1079, 1082 (Fed. Cir. 1994). The common meaning of a term used in commerce is presumed to be the same as its commercial meaning. Simon Am. Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989). To ascertain the common meaning of a term, a court may consult “dictionaries, scientific authorities, and other reliable information sources.” C.J. Tower & Sons v. United States, 673 F.2d 1268, 1271 (CCPA 1982).
McGraw-Hill Education, a digital learning company providing multi-subject educational content as well as references to professional trade publications, on its website, found at www.accessscience.com, defines the term “metallize” as “to coat or impregnate a metal or nonmetal surface with a metal, as by metal spraying or by vacuum evaporation.” The Concise Encyclopedia of Plastics defines “metallizing plastic” as “Coating plastic products and fibers with metal. Techniques include applying a thin coating of metal by chemical deposition or by exposing the surface to vaporized metal in a vacuum chamber.” See, Rosato, D. V., Concise Encyclopedia of Plastics, Kluwer, 2000. That same encyclopedia defines “vacuum metallizing” as “A process in which part surfaces are thinly coated with metal by exposure to the vapor metal that has been evaporated under vacuum at about one-millionth of normal atmospheric pressure.”
The Wiley Encyclopedia of Packaging Technology states that “Aluminum-metallized substrates such as PET … are manufactured by the vacuum metallization process. … Metallized films provide value to food packagers concerned with package integrity and shelf life. Metallized materials are decorative and also enhance properties such as moisture, light and gas barrier, flavor protection, protection against static electricity, and excellent machineability.” See, Kit L. Yam, The Wiley Encyclopedia of Packaging Technology, John Wiley & Sons, Inc., 2009.
The foregoing shows that metallized films are films covered with a layer of vacuum deposited aluminum, creating a reflective silvery surface visible to the naked eye. In contrast, the subject Alox PET film is manufactured in an operation where the aluminum is intended to unite with oxygen to transform into aluminum oxide. During the barrier coating process to create the film, aluminum is vaporized and combined with oxygen to form the aluminum oxide coating that imparts the film with its desired moisture and oxygen barrier qualities. Aluminum and antimony, present in small amounts in the aluminum wire and vaporized but not combined with oxygen, are deposited onto the PET film. Thus, the thin coating on the subject Alox PET film is not condensed onto the film silver colored aluminum metal, but clear aluminum oxide. Therefore, the subject Alox PET film does not have a reflective silvery surface. Rather, it is clear.
In its request for reconsideration JBF RAC LLC, while not disputing that the aluminum oxide forming the coating is not metal, argued that the coating includes some metal in the form of aluminum and antimony. Requestor also provided a laboratory test identifying one version of the film as containing five percent by weight of aluminum and two percent by weight of antimony, and another version of the film as containing five percent by weight of aluminum and one percent by weight of antimony. It is the requestor’s position that the smallest quantity of metal in the coating would qualify the film as “metallized” within the meaning of subheading 3920.62.0050, HTSUS.
Upon review, we do not find that the minimal amounts of metal, found on the subject film, are sufficient to describe it as “metallized” film. The evidence shows that the presence on the film of small amounts of antimony and aluminum is an unintended consequence of the process of depositing the aluminum oxide onto the film. In the trade, aluminum oxide coated film is distinguished from “metallized” film. Thus, Global Information, Inc., an information services company, on its website found at www.giiresearch.com features a market research study titled “Transparent Oxide-coated Films for Packaging,” which compares “metallized PET film, ALOx-coated PET film and SIOx coated PET film.” Moreover, on its website found at www.flexfilm.com, Flex Films, a manufacturer of packaging films, describes metallized and ALOX coated films as follows: “ALOx coating is the application of a thin and highly transparent coating of aluminum oxide on packaging films that gives the materials extremely high moisture and gas barrier properties that rival those of aluminum foils and metallized films. . . . This not only provides a big marketing plus but also facilitates operations like optical scanning/inspection and metal detection during and after the packaging process, something that is not possible with aluminum foils or metallized films.” Further, we note that the requestor’s own company profile, found at www.alibaba.com, lists “Alox films, Polyester films and Metallized films” as JBF RAC LLC’s main products, showing that, consistent with the trade, the requestor also treats Alox films and metallized films as different commercial products. See, http://www.alibaba.com/member/ae1010866337.html.
Based on the foregoing, we find that the subject Alox PET film is classified in subheading 3920.62.0090, HTSUS, as “Other plates, sheets, film, foil and strip, of plastics, noncellular and not reinforced, laminated, supported or similarly combined with other materials: Of polycarbonates, alkyd resins, polyallyl esters or other polyesters: Of poly(ethylene terephthalate): Other.”
HOLDING:
By application of GRIs 1 and 6, the subject Alox PET film is classified in subheading 3920.62.0090, HTSUS, as “Other plates, sheets, film, foil and strip, of plastics, noncellular and not reinforced, laminated, supported or similarly combined with other materials: Of polycarbonates, alkyd resins, polyallyl esters or other polyesters: Of poly(ethylene terephthalate): Other.” The 2015 column one general rate of duty is 4.2% 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 N184607, dated October 11, 2011, is AFFIRMED.
Sincerely,
Joanne Roman Stump, Acting Director
Commercial and Trade Facilitation Division