What's the HS Code for "Aluminum Foil"?

HQ 958058 SEPTEMBER 29, 1995 CLA-2 R:C:M 958058 JAS CATEGORY: Classification TARIFF NO.: 7607.11.30 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