CLA-2 RR:CR:GC 965999 GOB
Tim Michaely
ICS Customs Service Inc.
812 Thorndale Ave.
Bensenville, IL 60106
RE: Revocation of NY H87523; Aluminum Foil
Dear Mr. Michaely:
This letter is with respect to NY H87523 issued to you on behalf of Vaw Flexible Packaging on January 25, 2002. We have reviewed the classification in NY H87523 and have determined that it is incorrect. This ruling sets forth the correct classification.
Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of NY H87523, as described below, was published in the Customs Bulletin on November 13, 2002. No comments were received in response to the notice.
FACTS:
In NY H87523, the subject merchandise was described as follows:
Sample #1, called top peel®, is to be used as a peelable closure for bottles and cups. It will be made in France. Sample #2, called Hermetalu®, is to be used as a lidding aluminum with a heat seal lacquer. It will be made in Germany. Each foil is rolled, then coated with plastic. The thickness will vary from .03 mm to .06 mm. The product comes in three layers with the outside-coated layer to be used for surface printing. The middle layer is for oxygen and U.V. protection, stiffness and strength. The inside layer is for heat sealing to different types of plastics, glass or metal.
In NY H87523, Customs classified both samples in subheading 7607.11.60, HTSUS. As stated above, we have reviewed that classification and have determined that it is incorrect. This ruling sets forth the correct classification.
ISSUE:
What is the classification under the HTSUS of the subject aluminum foil?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI’s”). 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 GRI’s may then be applied.
The Harmonized Commodity Description and Coding System Explanatory Notes (“EN’s”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.
The HTSUS 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:
7607.11.60 Of a thickness exceeding 0.01 mm
* * * * * *
7607.19 Other:
Other:
7607.19.60 Other
In Winter-Wolff Inc. v. United States, 22 CIT 70 (1998), in finding that certain laser-treated aluminum capacitor foil was classified in subheading 7607.19.60, HTSUS, the court held that “further worked” should be defined in accordance with its common, dictionary meaning for the purpose of subheading 7607.11, HTSUS. From two dictionaries, the court interpreted the common dictionary meaning of “further worked” to be as follows: “. . . to subject an existing product to some process of development, treatment, or manufacture to a greater degree or extent . . . to form, fashion or shape an existing product to a greater extent.” Id. at 78.
We now conclude that the work performed on the subject aluminum foil (i.e., coatings) constitutes a “further working” based upon the definitions in Winter-Wolff, supra, i.e., the original product of the aluminum foil was developed, treated or manufactured to a greater extent. Because the aluminum foil is further worked, it is classified in subheading 7607.19, HTSUS, specifically in subheading 7607.19.60, HTSUS, 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: Not backed:. . . Other: . . . Other: . . . Other.”
HOLDING:
The subject aluminum foil (both samples) is classified in subheading 7607.19.60, HTSUS, 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: Not backed:. . . Other: . . . Other: . . . Other.”
EFFECT ON OTHER RULINGS:
NY H87523 is revoked. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Acting Director
Commercial Rulings Division