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HQ 960276





August 1, 1997

CLA-2 RR:TC:MM 960276 HMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 7607.20.50

Port Director of Customs
P.O. Box 610
Pembina, ND 58271

RE: PRD 3401-97-100016; Aluminum Foil/Polypropylene/Aluminum Foil, Polyester/Aluminum Laminates, Aluminum/Polypropylene Laminates; Subheadings 7607.11.30 and 7607.20.50; Chapter 76, Note 1 (d); Explanatory Notes 76.07 and 74.10; Backed Aluminum Foil.

Dear Port Director:

This is our decision on Protest 3401-97-100016, filed against your classification of various aluminum foils. The entries under protest were liquidated on November 22, 1996, and December 6, 1996, and this protest timely filed on January 17, 1997. Samples were submitted with the protest.

FACTS:

The merchandise consists of various aluminum foil products of different widths, invoiced as aluminum/polypropylene/aluminum foil, polyester/aluminum laminates and aluminum/polypropylene laminates. The protest focuses on the aluminum/polypropylene/aluminum foil product (APA foil), which is described as being made of a thin film of polypropylene with a thin layer of aluminum joined to both sides of the polypropylene film. The lamination is obtained by first combining polypropylene with an adhesive and bonding aluminum foil on one side. Aluminum foil is bonded again on the opposite side, after the aluminum/polypropylene laminate passes through an oven to heat it up. The polypropylene ends up "sandwiched" between two thin layers of aluminum foil, adding integral strength to the laminate that the aluminum foil cannot provide on its own. The laminate is used as a shield in coax (cable TV wire) cables. The aluminum keeps electro-magnetic interference out of the cable and prevents the signals that are carried in the cable from leaking out. The aluminum on the APA foil has a thickness of .00035 inches and the polypropylene has a thickness of .001 inches. By telephone, the importer clarified that the additional items in the protest consist of one sheet of aluminum foil with the polyester or polypropylene laminated to just one side and that the thickness of the aluminum does not exceed 0.2 mm.

The merchandise was entered as other backed aluminum foil of subheading 7607.20.50, Harmonized Tariff Schedule of the United States (HTSUS). However, the entries were liquidated under subheading 7607.11.30, HTSUS, as aluminum foil.

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:
Not backed:
7607.11 Rolled but not further worked:
Of a thickness not exceeding 0.15 mm:
7607.11.30 Of a thickness not exceeding 0.01 mm.....5% (CA)

7607.20 Backed:
7607.20.50 Other...Free

ISSUE:

Whether the aluminum foils are classifiable 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. GRI 6 states that the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.

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.

The Harmonized Commodity Description And Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized system. While not legally binding on the contracting parties, and therefore not dispositive, the ENs 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 Notes should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). Explanatory Note 76.07, at page 1158, 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, at page 1138, 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.

Heading 7607 provides for aluminum foil backed with paper, paperboard, plastics or similar backing material. However, neither the Notes to Chapter 76 nor 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). 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 line with the Notes to Chapter 76 and the ENs to heading 7607, it is our view that the polypropylene and polyester, in this instance, are backing material, used as reinforcement for convenience of handling or transport. We find that the lamination processes, which join the aluminum to the polypropylene or polyester and "sandwiches" polypropylene or polyester between two sheets of aluminum foil for added strength, meet the definition of "backed" foil. The lamination is obtained by first combining polypropylene with an adhesive and bonding aluminum foil on one side. The aluminum in the APA foil is bonded again on the opposite side, after the aluminum/polypropylene laminate passes through an oven to heat it up. The polypropylene or polyester provides strength to the laminate as the foil has no integral strength on its own. The aluminum in the APA foil is reinforced for easier handling as a shielding material in coax (cable TV wire) cables. We therefore conclude that the aluminum foils included in the captioned protest are other backed foil of a thickness not exceeding 0.2 mm of subheading 7607.20.50, HTSUS.

HOLDING:

Under the authority of GRI 1, the aluminum foils included in the captioned protest are classifiable in subheading 7607.20.50, HTSUS, as "Aluminum foil...: Backed: Other." The rate of duty is free.

This protest should be GRANTED. 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
Tariff Classification Appeals Division

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