CLA-2 R:C:M 958058 JAS
Mr. James S. O'Kelly, Esq.
Barnes, Richardson & Colburn
475 Park Avenue South
New York, NY 10016
RE: DD 807716 Affirmed; Laser Slit Aluminum Foil, Aluminum Foil
on Rolls Reduced in Thickness by Rolling, Annealed After
Rolling and Laser Slit to Width; Aluminum Foil Further
Worked, Subheading 7607.19.60
Dear Mr. O'Kelly:
In a letter, dated May 31, 1995, on behalf of Winter-Wolff,
Inc., you request reconsideration of a ruling issued by the
District Director of Customs, Ogdensburg, NY. The merchandise is
laser slit aluminum foil from Switzerland.
FACTS:
The merchandise is aluminum foil which, after importation,
is used in the production of high voltage electrical capacitors.
It will be imported in rolls, in widths of 228 mm to 635 mm, and
less than 0.01 mm thick. The product is made by annealing foil
stock, followed by single and double pass rolling to reduce
thickness, then rolling with another sheet of foil to further
reduce the thickness. The two rolls of foil are then separated
and the foil further annealed to prepare it for laser slitting
which reduces the foil to its final, narrower width. The laser
slit foil is then rewound on rolls prior to importation.
In DD 807716, dated March 30, 1995, the District Director at
Ogdensburg, NY, ruled the merchandise was classified as aluminum
foil of a thickness not exceeding 0.2 mm, not backed, rolled but
not further worked, in subheading 7607.11.30, HTSUS. It was
determined that neither the annealing nor the laser slitting
constituted further working after rolling.
You contend that the laser slitting after rolling is a
further working for tariff purposes, and that the provision for
other aluminum foil, not backed, in subheading 7607.19.60,
Harmonized Tariff Schedule of the United States (HTSUS), - 2 -
represents the proper classification. You state that laser
slitting constitutes further working because it rounds the edges
of the foil, creating a smoother surface and an insulating oxide
layer. You maintain that laser slit foil has superior
performance characteristics over knife cut foil because the oxide
layer reduces foil edge electrical stress levels and the rounded
edges increase the discharge inception voltage performance of the
Laser EX-7L capacitors in which the foil will be used. You have
submitted an affidavit from an end user of this foil attesting to
these enhanced electrical properties. You state this unique
technology is significantly more costly than the process used to
product knife cut 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
0.01 mm:
7607.11.30 Of a thickness not
exceeding 0.01 mm
...5.8 percent
* * * *
7607.19 Other:
Other:
7607.19.60 Other...3 percent
ISSUE:
Whether annealing and laser slitting constitute further
working after rolling for purposes of heading 7607.
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff
Schedule of the United States (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 - 3 -
or chapter notes, and provided the headings or notes do not
require otherwise, according to GRIs 2 through 6.
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).
Neither the relevant heading 76.07 ENs nor the notes on
copper foil of heading 74.10, which apply to heading 76.07 with
appropriate substitution of terms, are instructive with respect
to the term further worked. Relevant heading 76.06 ENs, aluminum
plates, sheets and strip, state that the heading 74.09 ENs for
corresponding articles of copper, apply also by appropriate
substitution of terms. It is these latter notes that provide the
only guidance in interpreting the term worked as it applies to
products of aluminum. You maintain that because the primary
difference between foil provided for in heading 7607 and sheet
provided for in heading 7606 is thickness, the construction of
the term worked in the heading 74.09 ENs should also apply to
heading 7607.
Relevant heading 74.09 ENs, at p. 1048, state the goods of
that heading remain there if worked (e.g., cut to shape,
perforated, corrugated, ribber, channelled, polished, coated,
embossed or rounded at the edges) provided they do not thereby
assume the character of articles or of products of other headings
(Emphasis added). Under this interpretation, you conclude that
aluminum foil that is rounded at the edges by laser slitting
should be considered "further worked." You also maintain that
the foil should be considered further worked because it is
annealed after rolling but before the laser slitting to remove
unwanted oils from its surface and to change the molecular
structure of the foil and increase its malleability.
We agree that the heading 74.09 ENs provide the best
available guidance on the meaning of the term further worked for
purposes of heading 7607. However, we do not agree that these
notes support the classification you propose. In our opinion,
neither the annealing nor the laser slitting processes, as
described, are compellingly analogous to the examples of a worked
product listed in EN 74.09. With the possible exception of
embossing, each of the examples in that note is a mechanical
process that is separate and distinct from the processes in which
the plate, sheet or strip are produced. The annealing and laser
slitting are part of the same process that creates the foil in - 4 -
narrower widths. Therefore, neither the annealing nor the laser
slitting of aluminum foil after rolling constitutes a further
working for purposes of heading 7607.
HOLDING:
Under the authority of GRI 1, the laser slit aluminum foil
is provided for in heading 7607. It is classifiable in
subheading 7607.11.30, HTSUS, as aluminum foil rolled but not
further worked of a thickness not exceeding 0.01 mm.
EFFECT ON OTHER RULINGS:
DD 807716, March 30, 1995, is affirmed.
Sincerely,
John Durant, Director
Commercial Rulings Division