HQ H008142

November 26, 2008

**CLA-2 OT:RR:CTF:TCM** H008142 HkP

**CATEGORY:** Classification

**TARIFF NO.:** 3921.90.40

Port Director

Port of Blaine

U.S. Customs and Border Protection

9901 Pacific Highway

Blaine, WA 98230

**RE:** AFR of Protest No. 3004-07-100006; Flexalcon packaging material

Dear Port Director:

This is our decision regarding the Application for Further Review
("AFR") of Protest No. 3004-07-100006, timely filed by counsel on behalf
of Alcan Packaging Food and Tobacco, Inc. ("Alcan"), concerning the
classification of Flexalcon flexible packaging material under the
Harmonized Tariff Schedule of the United States ("HTSUS"). Samples of
the merchandise at issue were provided by counsel to this office in
August 2007.

In reaching our decision we have taken into consideration arguments made
by counsel during a meeting with staff in this office on April 3, 2008,
as well as in a supplemental submission received on April 18, 2008.

**FACTS:**

The merchandise at issue, Flexalcon, is described by Protestant as being
flexible packaging (cold formable composite material) for retortable
(sterilizable) products. It is a direct substitute for conventional
packaging such as aluminum cans, steel cans, or glass jars, and has been
used to package military rations. Flexalcon's barrier properties protect
the food contents of the package from the penetration of light, water
vapor, oxygen, microorganisms, mold, yeast, odor and insects, and also
prevents the loss of aroma, vitamins, liquid, fat and CO~2~/N~2~. It is
made of aluminum and plastic layers adhered together through a
lamination process. Flexalcon is imported in material lengths.

Detailed information was submitted on 3 colors of Flexalcon: silver, MRE
sand beige, and printed Pinnacle/Dial. For simplicity, the
silver-colored material will be discussed as a representative sample.
According to the submitted information, Flexalcon material used as a lid
for packaging is a three layer sandwich construction consisting of 19
microns of polyethylene (PET) film, 12 microns of aluminum foil and 75
microns of polypropylene (PP) film laminated together with adhesive. The
layers of plastics account for 83 % of the thickness, 72 % of the weight
and 67 % of the value of the material. The middle foil layer accounts
for 11% of the thickness, 23% of the weight and 25% of the value of the
lid. The Flexalcon material used to make the body of packaging consists
of 30 microns OPP (oriented polypropylene) film, 45 microns of aluminum
foil, 15 microns of OPA (oriented polyamide, a nylon) film, and 75
microns PP film, with an adhesive between each layer. The plastics
account for 67% of the thickness, 48% of the weight, and 44% of the
value of the material. The aluminum foil accounts for 25% of the
thickness, 48% of the weight, and 49% of the value. Adhesive accounts
for the balance. According to the submitted information, the aluminum
used to make the lid is thinner than the aluminum used to make the base
of the packaging because the lids do not need to be formed.

According to the Flexalcon Fact Sheet, plastics, while having barrier
properties, allow oxygen migration and result in a packaged food product
having a maximum shelf-life of 14-21 days. Aluminum provides barrier
properties for at least three years of shelf-life. Because of its metal
properties, Flexalcon has a low oxygen transmission rate of 0.06
ccm/m^2^/24h/atm, and a low water transmission rate of 0.01g/m^2^/24h.
The Fact Sheet also states that the plastic components provide specific
support functions for the aluminum. Specifically, the plastic improves
deep drawing formability, which refers to the extent to which the
material can be drawn or stretched to form a pocket in the base
material. Without plastic the base material can only be drawn 10% of the
width of the material but with plastic, it can be drawn 20 -- 30%. The
OPA film increases bursting strength, improves piercing and pinhole
strength and sustains the aluminum during forming. The OPP film protects
the aluminum from mechanical and chemical influences. The PET film
provides protection for the aluminum and provides a surface for
printing. Finally, the PP film improves package stiffness and supports
the sealing together of the base and the lid.

Included in the supplemental information provided by Protestant was a
letter from the Department of the Army which stated, among other things,
with respect to military rations packaging:

> From a barrier standpoint, the most critical component of the flexible
> packaging material is the aluminum layer because of its inherent
> barrier properties. These barrier properties are responsible for
> keeping light, moisture, oxygen and micro-organisms out of the
> packaged food, and keeping aroma, vitamins, liquid and flavor in.
> Studies have shown that the use of aluminum foil offers the highest
> rate of impermeability. It also enables packaged food to meet or
> exceed the mandatory requirement of having a minimum shelf life of
> three years at 80°F.

The merchandise was entered on various dates between October 23, 2005,
and March 19, 2006, in subheading 7607.20, HTSUS, which provides for:
"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: Backed." These entries
were rate advanced by U.S. Customs and Border Protection ("CBP") and
liquidated under subheading 3921.90, HTSUS, which provides for: "Other
plates, sheets, film, foil and strip, of plastics: Other." The entries
were liquidated on August 18, 2006. A protest was timely filed on
February 13, 2007, in which Protestant asserted that the proper
classification is under subheading 7607.20, HTSUS.

**ISSUE:**

What is the proper classification of Flexalcon flexible packaging
material under the HTSUS?

What is the meaning of the term "backed" for purposes of heading 7607,
HTSUS?

**LAW AND ANALYSIS:**

Initially, we note that the matter protested is protestable under 19
U.S.C. §1514(a)(2) as a decision on classification. The protest was
timely filed within 180 days of liquidation of the first entry for
entries made on or after December 18, 2004. (Miscellaneous Trade and
Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii),
(iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).

Further Review of Protest No. 3004-07-100006 was properly accorded to
protestant pursuant to 19 C.F.R. § 174.24 because the decision against
which the protest was filed is alleged to be inconsistent with a ruling
of the Commissioner of Customs or his designee with respect to the same
or substantially similar merchandise.

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:

> \* \* \*

3921.90 Other:

**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:

Note 10 to Chapter 39 provides:

> In headings 3920 and 3921, the expression "[plates, sheets, film, foil
> and strip]{.underline}" applies only to plates sheets, film, foil and
> strip (other than those of chapter 54) and to blocks of regular
> geometric shape, whether or not printed or otherwise surface-worked,
> uncut or cut into rectangles (including squares) but not further
> worked (even if when so cut they become articles ready for use).

Note 1(d) to Chapter 76 provides, in relevant part:

> Flat-surfaced products (other than the unwrought products of heading
> 7601) coiled or not, of solid rectangular (other than square) cross
> section with or without rounded corners (including "modified
> rectangles" of which the two opposite sides are convex arcs, the other
> two sides being straight, of equal length and parallel) of a uniform
> thickness\[.\]

....

> Headings 7606 and 7607 apply, [inter alia]{.underline}, 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 HTSUS. While not
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 at the international level.
[See]{.underline} T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989).

The General ENs to Chapter 39 provide, in relevant part:

\* \* \*

> This Chapter also 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.

EN 39.21 provides, in relevant part:

> This heading covers plates, sheets, film, foil and strip, of plastics,
> **other than** those of **heading 39.18, 39.19** or **39.20** or of
> **Chapter 54**. It therefore covers only cellular products or those
> which have been reinforced, laminated, supported or similarly combined
> with other materials. (For the classification of plates, etc. combined
> with other materials, see the General Explanatory Note.)

The General ENs to Chapter 76 provide, in pertinent part:

> Products and articles of aluminum are frequently subjected to various
> treatments to improve the properties or appearance of the metal, to
> protect it from corrosion, etc. These treatments are generally those
> referred to at the end of the General Explanatory Note to Chapter 72,
> and do not affect classification of the goods.

The General ENs to Chapter 72 provide, in relevant part:

\(C\) **Subsequent manufacture and finishing**

> The finished products may be subjected to further finishing treatments
> or converted into other articles by a series of operations such as:

....

\(2\) ...

....

> \(d\) Surface finishing treatment, including:
>
> ....
>
> \(v\) coating with non-metallic substances, e.g., ... coating with
> ceramics or plastics\[.\]

....

> \(g\) Lamination\[.\]

Protestant believes that Flexalcon is properly classified in heading
7607, HTSUS, as backed aluminum foil, using a GRI 1 analysis. In support
of classification in heading 7607, HTSUS, as "backed" foil, Protestant
cites Headquarters Ruling Letter ("HQ") 967682, dated December 14, 2005,
in which CBP classified sheets of flexible magnetic shielding material,
known as "Finemet," as a flat-rolled product of other alloy steel of
heading 7226, HTSUS. Finemet consisted of 5 alternating layers: (1) PET
film, (2) adhesive, (3) Finemet ribbon, (4) adhesive, and (5) PET film.
The production process was described in HQ 967682 as follows: "Alloy
steel, in ribbon form, is first produced by ejecting molten steel from a
crucible onto a rotating chill roll. The molten steel is rapidly
quenched, then heat treated, after which adhesive is applied to both
sides and PET is applied by a laminating process." CBP found that the
uniting of the five alternating layers of PET film and alloy steel
ribbon constituted "lamination," which was designed to improve the
properties of the alloy steel ribbon. Protestant is of the view that,
like the Finemet product, Flexalcon should be classified as a flat metal
product under the appropriate chapter for aluminum. In support of this,
Protestant cites the General Explanatory Note to Chapter 76, which
explains, among other things, that aluminum products and articles may be
subjected to various treatments, such as lamination, that do not affect
the classification of those goods in Chapter 76, HTSUS.
[See]{.underline} General EN to Chapter 76. [See also]{.underline}
General EN to Chapter 72 (incorporated by reference into the General EN
to Chapter 76).

HQ 967682 is one of a series of rulings that revoked previous CBP
decisions on the classification of laminated steel sheeting.
[See]{.underline} [39 Cust. B. & Dec. No. 43]{.underline}, October 19,
2005, *Proposed Revocation of Ruling Letters and Treatment Relating to
Tariff Classification of Laminated Steel Sheet*. Those decisions
concerned the issue of whether lamination advanced flat-rolled steel
beyond the scope of Chapter 72. The analysis in HQ 967682 was not based
on a determination of whether or not the product at issue in that case
was backed, which is the question here. Consequently, we are unable to
rely on its analysis because it does not assist in construing the
provisions of heading 7607, HTSUS.

Protestant argues that backed foil of heading 7607, HTSUS, can have two
backs and relies on the phrase "excluding any backing" found in the text
of heading 7607, HTSUS. In particular, Protestant focuses on the meaning
of the term "any" in that phrase, the adjectival form of which is
defined in [Webster's Third New International Dictionary]{.underline}
(1976) and quoted by Protestant as meaning, among other things, "one,
some or all indiscriminately of whatever quantity."

The parenthetical phrase "excluding any backing" is not commentary on
the definition of the word "backing" or on the way in which backing is
adhered to foil. It refers to the materials (i.e., paper, paperboard,
plastics or similar backing materials enumerated earlier in the heading
text) that must be discounted when measuring the thickness of backed
aluminum foil. Furthermore, as noted by Protestant, the term "any" is
used as an adjective, that is, it modifies the noun "backing."
Therefore, the term "any" cannot be construed in isolation but must be
understood in relation to the phrase of which it is a part.

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]{.underline}, 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.]{.underline}
(quoting [C.J. Tower & Sons of Buffalo, Inc. v. United
States]{.underline}, 673 F.2d 1268, 1271, 69 C.C.P.A. 128 (C.C.P.A.
1982); [Simod Am. Corp. v. United States]{.underline}, 872 F.2d 1572,
1576 (Fed. Cir. 1989)). The [Random House Dictionary of the English
Language]{.underline} 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.]{.underline} The [Oxford English Dictionary]{.underline} (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]{.underline} EN 76.07)) explains that: "\[F\]oil, 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." Based on the common and commercial meaning
of the word "backed" and the explanation provided in the ENs, we find
that foil with a coherent substrate joined to its "back" in order to
strengthen, support, or protect the foil or to facilitate its handing,
transport or subsequent treatment may be classified in heading 7607,
HTSUS, as "backed" foil on the basis of GRI 1. Accordingly, it is
evident that the phrase "excluding any backing" refers to any one of the
types of backing enumerated in heading 7607, HTSUS.

Flexalcon is not described by the term "backed". Although the plastic
layers are added to the foil for strength and to support, protect, and
facilitate handling, transport and subsequent treatment of the foil, the
plastics are added to both sides of the foil and, therefore, cannot
properly be considered "backing". In this regard, we note that CBP has
previously classified foil product comprised of a layer of plastic
sandwiched between two layers of aluminum foil as "backed" aluminum foil
under heading 7607, on the basis of GRI 1. [See]{.underline} HQ 960276,
dated August 1, 1997. However, the foil product classified in that
ruling was an aluminum foil/plastic/aluminum foil composition while the
product currently under consideration is a plastic/aluminum foil/plastic
composition. The product classified in HQ 960276 was properly found to
be "backed" because one side of each layer of the foil was adhered to a
common inner plastic substrate, that is, the foil was placed
"back-to-back" on the substrate, in order to strengthen the foil. In the
current situation, both the front and the back of the internal foil
layer are adhered to the back of each external plastic layer.
Consequently, we find that the merchandise at issue is not similar to
the merchandise classified in HQ 960276 and cannot be classified in the
same provision.

Furthermore, we find that Flexalcon cannot be classified under heading
7607, HTSUS, as "not backed" aluminum foil on the basis of a GRI 1
analysis because it is combined with another material but is not backed
or coated. Note 1(d) to Chapter 76 allows for foil which has been coated
(the other specified treatments do not concern the combination of foil
with other materials) to be classified in heading 7607, HTSUS, using GRI
1, provided that the foil has not assumed the character of an article or
product of another heading. This is also explained in the General ENs to
Chapter 72, which applies, in part, to products of Chapter 76
([see]{.underline} General EN to Chapter 76). CBP has previously found
that a "coating" is "a layer of any substance spread over a surface."
See HQ 966769, dated January 5, 2004, in which CBP determined that
lacquer applied in liquid form and which hardened subsequent to its
application was a coating and not a backing. We note that "lamination"
is not mentioned in Note 1(d) to Chapter 76. Consequently, Flexalcon is
not classifiable in heading 7607, HTSUS.

In its supplemental submission, Protestant argues that "the explicit
terms of ... heading \[3921\] only refers to a part (i.e. the plastic
substrates) of the finished good." Further:

(1) Note 10 to Chapter 39, HTSUS, which defines the key language
    contained in this tariff provision, does not describe the Flexalcon
    packaging materials, either in their imported or finished condition;

(2) Based on their physical attributes and utility, Flexalcon does not
    retain the essential character of plastics as required by the ENs to
    HTSUS Chapter 39; and

(3) HTSUS heading 3921 is a "basket" provision and is, therefore, not
    the preferred classification if the Flexalcon packaging materials
    are more specifically described or included elsewhere in the HTSUS.

Note 10 to Chapter 39 provides two explanations concerning headings 3920
and 3921, HTSUS. The first is that the expression "plates, sheets, film,
foil and strip" applies to plates, sheets, film, foil and strip, other
than those of Chapter 54. The second is that the stated expression also
applies, among other things, to blocks of regular geometric shapes,
whether or not printed or otherwise surface worked, uncut or cut into
rectangles but not further worked, even if when so cut they become
articles ready for use.

Protestant argues that heading 3921, HTSUS, does not include products
imported in rolls because rolls or coils are not expressly mentioned in
the heading text. Protestant directs our attention to Note 1(g) to
Chapter 74 and Note 1(d) to Chapter 76, both of which define the
expression "plates, sheets, strip and foil" as including products that
are coiled.

As previously discussed, GRI 1 directs, in relevant part, that
classification "shall be determined according to the terms of the
headings and any [relative]{.underline} section or chapter notes"
(emphasis added). Heading 3921, HTSUS is neither in Chapter 74 nor 76 of
the HTSUS; consequently, the Notes for these chapters are inapplicable
to heading 3921, HTSUS. Moreover, the superior text of Note 1(g) to
Chapter 74 and Note 1(d) to Chapter 76 each state, "[In this
chapter]{.underline} the following expressions have the meanings hereby
assigned to them" (emphasis added). It is a canon of statutory
interpretation that if the language of a statute is plain, it must be
applied as written. There is no limitation on the condition in which
sheets of plastic may be imported manifest in the language of the
tariff, either in the text of heading 3921, HTSUS, or in the Section or
Chapter Notes applicable to that heading. CBP cannot impose a limitation
where one does not exist. We find, therefore, that there is no basis on
which to exclude plastic sheeting imported in rolls from classification
under heading 3921, HTSUS.

Protestant also argues that heading 3921, HTSUS, is not the correct
classification for this merchandise because it is "further worked"
within the meaning of Note 10 to Chapter 39. Even if, as Protestant
infers, the prohibition against further working applied to sheets of
plastics (which we do not believe it does), Flexalcon is not "further
worked" as is maintained. In [Winter-Wolff, Inc. v. United
States]{.underline}, 22 Ct. Int'l Trade 70; 996 F. Supp. 1258 (1998)
(citations omitted), the Court of International Trade found that the
expression "further worked" means "to form, fashion, or shape an
existing product to a greater extent." [Id.]{.underline} at 1265.
Specifically, with regard to the meaning of "working," the Court noted
of the product under its consideration (aluminum foil) that "the
physical effects produced by the laser amount to a process, treatment,
or development. Hence the laser treatment constitutes 'working' within
the common, dictionary meaning of the term." [Id.]{.underline} at 1266.
See HQ 084938, for a discussion on the further working of plastic. Note
10 to Chapter 39, HTSUS, concerns plastics. Nothing has been done to the
plastic layers of the Flexalcon material that results in a "physical
effect" on these layers.

With regard to understanding the language of heading 3921, HTSUS,

GRI 1 provides instruction on how the expression "other" in the heading
text is to be construed, that is, "according to the terms of the
headings and any relative section or chapter notes ... provided such
headings or notes do not otherwise require". Accordingly, heading 3921,
HTSUS, has to be read in the context of the other headings in which
plastic plates, sheets, film, foil and strip can be classified, that is,
(in Chapter 39) headings 3918 (Floor coverings of plastics; wall and
ceiling coverings of plastics), 3919 (Self-adhesive plates, sheets,
film, foil, tape, strip and other flat shapes, of plastics) and 3920
(Other plates, sheets, film, foil and strip, of plastics, noncellular
and not reinforced, laminated, supported or similarly combined with
other materials). On this basis, we find that heading 3921, HTSUS,
provides for, among other things, plastic film combined with other
materials. This interpretation of the heading text is supported by the
Explanatory Notes to heading 3921, HTSUS. [See]{.underline} EN 39.21. We
find, therefore, that composite goods consisting in part of plastic
sheets or other forms named in the heading may be classified in heading
3921, HTSUS, on the basis of GRI 1, provided they retain the essential
character of articles of plastics. See General EN to Chapter 39, which
explains that sheets of plastics separated by a layer of foil are
provided for in Chapter 39. Heading 3921, HTSUS, provides a specific
home for "other" plates, sheets, and strips of plastics but acknowledges
that they may be classified more specifically elsewhere in the HTSUS.
Here, however, because we have determined that the merchandise is not
classifiable in heading 7607, HTSUS, it is not specifically described
elsewhere in the HTSUS. Based on all of the foregoing, we find that
Flexalcon is classifiable under heading 3921, HTSUS, using a GRI 1
analysis, because the heading provides for plastic sheets combined with
other materials and because it is described by Note 10 to Chapter 39.

**HOLDING:**

By application of GRI 1, the Flexalcon material is classified in heading
3921, HTSUS. It is specifically provided for in subheading 3921.90.40,
HTSUS, which provides for: "Other plates, sheets, film, foil and strip,
of plastics: Other: Other: Flexible: Other." The 2006 column one,
general rate of duty is 4.2% *ad valorem*.

Since the rate of duty under the classification indicated above is the
same as the liquidated rate, you are instructed to deny the protest in
full. In accordance with Sections IV and VI of the CBP [Protest/Petition
Processing Handbook]{.underline} (HB 3500-08A, December 2007, pp. 24 and
26), you are to mail this decision, together with the CBP Form 19, to
the protestant no later than 60 days from the date of this letter.

No later than 60 days from the date of this letter, the Office of
International Trade, Regulations and Rulings will make the decision
available to CBP personnel, and to the public on the CBP homepage on the
World Wide Web at www.cbp.gov, by means of the Freedom of Information
Act, and other methods of public distribution.

> Sincerely,
>
> Myles B. Harmon, Director
>
> Commercial and Trade Facilitation Division