January 2, 2009 CBP Bulletin Notice on Classification of Flexible Packaging Material
In the January 2, 2009 issue of the U.S. Customs and Border Protection Bulletin (Vol. 43, No. 2), CBP published a notice proposing to modify one ruling and revoke a treatment as follows:
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Proposed modification of ruling; proposed revocation of treatment. CBP is proposing to modify a ruling on the classification of certain flexible packaging material composed of polyethylene terephthalate (PET) film, aluminum foil and peelable high-density polyethylene (HDPE) film adhered together in layers. Additionally, CBP proposes that this notice covers any rulings on this merchandise that may exist but have not been specifically identified. CBP is also proposing to revoke any treatment it has previously accorded to substantially identical transactions.
CBP states that any party who has received a contrary written ruling or decision on the merchandise that is subject to the proposed modification and revocation, or any party involved with a substantially identical transaction, should advise CBP by February 1, 2009, the date that written comments on the proposed rulings are due. Furthermore, CBP states that an importer's failure to advise CBP of such rulings, decisions, or substantially identical transactions may raise issues of reasonable care on the part of the importer or its agent for importations subsequent to the effective date of the final decision in this notice.
Flexible packaging material. The merchandise at issue is identified as Capsteril PAF212 is a tri-laminate of PET, aluminum foil and peelable HDPE. This foil gives a peelable sealing to polyethylene containers. The aluminum foil and peelable HDPE are of the same thickness. The PET layer makes the foil extra tear resistant. It is to be used as a lidding for blowmolded or injection molded containers, providing a sterile closure in an aseptic filling process. The total thickness is 0.1182mm. The mass (g/m2) of the foil exceeds that of the plastic.
CBP is proposing to issue HQ H045859 in order to modify NY J84648 and determine that the flexible packaging material composed of PET film, aluminum foil and peelable HDPE film adhered together in layers should be classified under HTS 3921.90.40 as "Other plates, sheets, film, foil and strip, of plastics: Other: Other: Flexible," rather than under HTS 7607.20.50 as "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: Other." The other items in ruling NY J84648 are unaffected by this proposed modification.
CBP proposes this change as a correction based largely on the Explanatory Notes (ENs). The General EN to Chapter 39 provides, 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."
Furthermore, 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."
The instant merchandise was classified under heading 7607 as "backed" aluminum foil. The tariff does not define the term "backed." When a tariff term is not defined by the HTS or the legislative history, its correct meaning is its common, or commercial, meaning. Based on dictionary and industry definitions, CBP has previously found that the word "backed" is defined as "having a back, setting or support." CBP now determines that Capsteril PAF212 packaging material is not properly 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 addition, CBP now asserts that the Capsteril PAF212 packaging material retains the essential character of an article of plastic because its plastic layers encase the foil layer and confer on to it the characteristics of plastic.
CBP now proposes that, by application of GRI 1, Capsteril PAF212 flexible packaging material should be classified under HTS 3921.It is specifically provided for in subheading 3921.90.40 which provides for: "Other plates, sheets, film, foil and strip, of plastics: Other: Other: Flexible."
Proposed: 3921.90.40, 4.2%; Current: 7607.20.50, duty-free
January 2, 2009 CBP Bulletin (Vol. 43, No. 2) available athttp://www.cbp.gov/xp/cgov/trade/legal/bulletins_decisions/bulletins_2009/