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HQ 967474




December 21, 2004

CLA-2: RR:CR:TE: 967474 BtB

CATEGORY: CLASSIFICATION

TARIFF NO.: 7407.10.3000

Ms. Cindy Vinson
International Freight Forwarders, Inc.
452-A Plaza Drive
P.O. Box 45505
Atlanta, GA 30320

RE: Affirmation of NY K89377; copper profiles from Germany

Dear Ms. Vinson:

This is in response to your letter dated October 18, 2004 to the Director of the Bureau of Customs and Border Protection’s National Commodity Specialist Division (NCSD) in New York, on behalf of your client, EKS Isodraht Gmbh & Co., KG, Germany, requesting partial reconsideration of New York Ruling Letter (NY) K89377, dated September 21, 2004.

NY K89377 addressed the classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of seven types of copper profiles and strips. You have requested reconsideration of NY K89377 in regard to the classification of two types of copper profiles, identified as the “Item F 4467-FZ” and the “Item F 3924-FZ.” Your request, together with samples of the merchandise, has been forwarded to this office for appropriate action. The NCSD also forwarded us a copy of the e-mail that you sent on December 7, 2004, that includes supplemental information about the articles. As per your request, the samples will be returned to you under separate cover.

FACTS:

In the original ruling request letter, the Item F 4467-FZ and the Item F 3924-FZ were described as flat copper strips with a “grooved surface.” Both articles are made of refined copper. According to the manufacturer, they are hard drawn or rolled from a round copper-rod and imported in coiled form. The manufacturer states that the articles “are used for manufacturing segments or ‘shells’ which are cut off the strips; these segments are assembled to commutators, parts of electrical motors.”

Our sample of the Item F 4467-FZ has a width of approximately 30 millimeters and a length of approximately 160 millimeters. At its thickest point, the Item F 4467-FZ measures approximately 2 millimeters. However, approximately 7 millimeters from one of its sides along its length, the article’s thickness drops to approximately 1 millimeter and remains this thick to the edge. The drop in thickness is straight, and results in the top surface of the article having a two-leveled surface (in the shape of a small step). The side of the top surface and the top of the lower surface are rays that form a right angle, with the corner of the top surface and lower surface as the vertex.

Our sample of the Item F 3924-FZ is very similar to the Item F 4467-FZ. The Item F 3924-FZ has a width of approximately 23 millimeters and a length of approximately 160 millimeters. At its thickest point, the Item F 3924-FZ measures approximately 2 millimeters. However, approximately 7 millimeters from one of its sides along its length, the article’s thickness drops to approximately 1 millimeter and remains this thick to the edge. The drop in thickness is straight, and results in the top surface of the article having a two-leveled surface (in the shape of a small step).

Our measurements of both samples do not match the measurements of the articles stated in your request for reconsideration or the measurements of the articles in the “drawing of samples” that the manufacturer provided with the original ruling request. We note that measurements of the articles stated in your request for reconsideration also do not match the measurements of the articles in the “drawing of samples.” The side of the top surface and the top of the lower surface are rays that form a right angle, with the corner of the top surface and lower surface as the vertex.

In your letter requesting reconsideration, you state the following regarding the two items:

In the opinion of the manufacturer/importer, these are flat strips of rectangular shape according to Chapter 74 Note. 1(g). Chapter 74 Note 1(g) further describes that the following patterns like grooves, etc. do not change the character of the flat strip. These strips have a solid rectangular shape. Each flat strip is only a small corner. The manufacturer believes that the correct hts# for these products is 7409.11.5050.

In NY K89377, the NCSD classified the Item F 4467-FZ and the Item F 3924-FZ under subheading 7407.10.3000, HTSUSA, which provides for “Copper bars, rods and profiles: Of refined copper: Profiles: Other.” The provision that the manufacturer believes the two items are classified under, subheading 7409.11.5050, HTSUSA, provides for: “Copper plates, sheets and strip, of a thickness exceeding 0.15 mm: Of refined copper: In coils: Of a thickness of less than 5 mm: Of a width of less than 500 mm.”

ISSUE:

Are the Item F 4467-FZ and the Item F 3924-FZ classifiable under subheading 7409.11.5050, HTSUSA, as copper strips?

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides, in part, that classification decisions are to be "determined according to the terms of the headings and any relative section or chapter notes." In the event that 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 may then be applied, in order. The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

Initially, the applicable section and chapter notes must be examined for any instruction they provide. In this regard, Chapter 74, Note 1(g), defines “plates, sheets, strip and foil” as:

Flat-surfaced products (other than the unwrought products of heading 7403), coiled or not, of solid rectangular (other than square) cross section with or without rounded corners (including “modified rectangles” of which two opposite sides are convex arcs, the other two sides being straight, of equal length and parallel) of a uniform thickness, which are:

- of rectangular (including square) shape with a thickness not exceeding one- tenth of the width,

- of a shape other than rectangular or square, of any size, provided that they do not assume the character of articles or products of other headings.

Additionally, Chapter 74, Note 1(g) states that “[h]eadings 7409 and 7410 apply, inter alia, 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.”

In the case at hand, the Item F 4467-FZ and the Item F 3924-FZ do not fall within the definition set forth for “plates, sheets, strip and foil” in Chapter 74, Note 1(g) because they are not flat-surfaced and do not have a solid rectangular cross section of a uniform thickness. The Cambridge Advanced Learner’s Dictionary defines “rectangle” as “a flat shape with four 90-degree angles and four sides, with opposite sides of equal length.” The articles at issue are not flat. While they have been described by the manufacturer as flat copper strips with a “grooved surface,” we do not find this description to be accurate. Rather, the top surfaces of the articles have straight drops in thickness approximately 7 millimeters from one of their sides along their length. The articles are shaped like rectangles that have had a portion of their top and side surfaces cut by a 90-degree angle and removed. The result is that the top surface of the articles is two-leveled (in the shape of a small step), with the top level measuring approximately 2 millimeters and the bottom level measuring approximately 1 millimeter thick. Accordingly, these articles have six 90-degree angles, instead of four.

Contrary to the manufacturer’s assertion, we do not find the top surface of these articles to be “grooved.” The Cambridge Advanced Learner’s Dictionary defines “groove” as “a long narrow hollow space cut into a surface.” The shape that the top surfaces of these articles have is more accurately described as a step. The manufacturer itself calls this shape a “step” in the text of the December 7, 2004, e-mail that you forwarded to the NCSD. The step in no way resembles a channel. The Item F 4467-FZ and the Item F 3924-FZ are concave polygons, as at least one of their internal angles is greater than 180 degrees. While the articles do have a uniform cross section along their whole length, they do not have a solid rectangular cross section of a uniform thickness. The drop in thickness that both articles have gives both articles disparate asymmetrical cross sections along their width. Therefore, the Item F 4467-FZ and the Item F 3924-FZ do meet the definition of “plates, sheets, strip and foil” set forth in Chapter 74, Note 1(g). While you did not raise the claim, we note that the articles also do not meet the definition of “bars and rods” or “wire” set forth in Chapter 74 because of their shape and because they are imported in coils.

The articles do meet the definition of “profiles” set forth in Chapter 74, Note 1(e), which provides for, in pertinent part: “[r]olled, extruded, drawn, forged or formed products, coiled or not, of a uniform cross section along their whole length, which do not conform to any of the definitions of bars, rods, wire, plates, sheets, strip, foil, tubes, or pipes.” Accordingly, the articles are classified as profiles.

HOLDING:

NY K89377, dated September 21, 2004, is hereby affirmed.

The Item F 4467-FZ and the Item F 3924-FZ are classified under subheading

7407.10.3000, HTSUSA, which provides for “Copper bars, rods and profiles: Of refined copper: Profiles: Other.” The applicable 2004 general, column one rate of duty for the articles is 3 percent ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the world wide web at www.usitc.gov.

Sincerely,

Myles B. Harmon, Director

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