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HQ 959298




May 8, 1998

CLA-2 RR:CR:GC 959298 HMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 3921.90.40

Port Director of Customs
P.O. Box 1490
St. Albans, VT 05478

RE: Protest 0201-96-100158; Polacolor Foil; Polypropylene/Aluminum/Polypropylene Laminate; Subheading 3921.90.40 and 7607.20.50; General Explanatory Note to Chapter 39; Explanatory Note 39.21; Other plate, sheets, film, foil and strip, of plastics; Aluminum Foil.

Dear Port Director:

This is our decision on protest 0201-96-100158, filed against your classification of Polacolor foil. The entries under protest were liquidated on March 15, 1996, and this protest timely filed on April 17, 1996.

FACTS:

The merchandise under protest is made of aluminum foil sandwiched between two laminates of polypropylene. After importation, the Polacolor foil is used to manufacture wrappings for photographic films. Each plastic layer has a thickness of 0.001 inch; the aluminum foil has a thickness of 0.0003 inch.

The merchandise was entered under a provision for backed aluminum foil under subheading 7607.20.50 of the Harmonized Tariff Schedule of the United States (HTSUS). However, the entries were liquidated under subheading 3921.90.40, HTSUS, as other plates, sheets, film, foil and strip, of plastics.

The provisions under consideration are as follows:

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:
7607.20.50 Other...Free

3921 Other plates, sheets, film, foil and strip, of plastics:
3921.90 Other:
Other:
3921.90.40 Flexible...4.2%

ISSUE:

Whether the Polacolor foil is classifiable as other plates, sheets, film, foil and strip, of plastics under subheading 3921.90.40, HTSUS, or as other backed aluminum foil under subheading 7607.20.50, HTSUS.

LAW AND ANALYSIS:

Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

The Polacolor foil is made of an aluminum foil sandwiched between two layers of polypropylene. The merchandise is described in part by heading 7607, as aluminum foil, and by heading 3921, as other plates, sheets, film, foil and strip of plastics.

GRI 3(a) states that when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods. The Polacolor foil is made up of different components which together form an inseparable whole. Since the Polacolor foil is a composite good, described in part by two different headings, we must apply GRI 3(b) which requires that composite goods are to be classified according to the component which gives the good its essential character.

The Harmonized Commodity Description And Coding System Explanatory Notes (EN's) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the EN's provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the EN's should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

Explanatory Note (VIII) to GRI 3(b), at page 4, states 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.

We believe the polypropylene laminates impart the essential character to the Polacolor foil. In HQ 950705, dated July 17, 1992, Customs determined that a coffee bag made of a middle layer of aluminum foil with the outer and inner layers made of polyurethane and polyethylene had the essential character of an article of plastic. In that case, Customs found that the aluminum layer was mainly a moisture barrier and did not provide any form of strength to the bag, and that the plastic predominated by weight overwhelmingly. As in the case of the coffee bag, we find that the aluminum foil is used only as a sunlight and moisture barrier and that it does not add significantly to the strength of the wrapping. We believe that the plastic imparts the essential character to the subject merchandise. In accordance with GRI 3(b), the Polacolor foil is classifiable as if made only of polypropylene.

Articles of polypropylene are plastics provided for in Chapter 39, HTSUS. General EN to Chapter 39, HTSUS, states, at page 598, that

[Chapter 39] covers the following products, whether they have been obtained by a single operation or by a number of successive operations provided that they retain the essential character of articles of plastics:

...

(b) Plates, sheets, etc., of plastics separated by a layer of another material such as metal foil, paper, paperboard.

Having determined that the Polacolor foil has the essential character of articles of plastics, we find that it is described by heading 3921, as other plates, sheets, film, foil and strip, of plastics. This is supported by the General EN to Chapter 39 and EN 39.21, which state that heading 3921 covers products laminated with another material. The Polacolor foil is therefore classifiable under subheading 3921.90.40, HTSUS, as other plates, sheets, film, foil and strip, of plastics, other, flexible, other.

HOLDING:

Under the authority of GRI 1, the Polacolor is classifiable under subheading 3921.90.40, HTSUS, as other plates, sheets, film, foil and strip, of plastics, other, flexible, other. The 1994 rate of duty is 4.2%.

This protest should be DENIED.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you should mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and to the public via the Diskette Subscription Service, the Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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