CLA-2 CO:R:C:M 089566 DWS
District Director of Customs
909 First Avenue, Rm. 2039
Seattle, Washington 98174
RE: E.D. Aluminum Tube; Electrostatic Copier Cartridge
Drum; PRD 3001-91-100551
Dear Sir:
This is our decision on Application for Further Review of
Protest No. 3001-91-100551, dated May 3, 1991, filed by Showa
Aluminum Corporation of America. The merchandise is an E. D.
tube, also referred to as a pipe imported for use as the drum in
an electrostatic photocopier. Samples were submitted.
FACTS:
In Japan, molten aluminum from melted ingots is first cast
into billets each 7 inches in diameter and 15 feet long. These
are alloyed billets, ASTM 3000 series. The billets are then
placed in a homogenizing furnace to reduce casting stresses, to
produce a uniform metallurgical structure and to increase tensile
strength. They are then extruded into tubes sometimes hundreds
of yards long, stretched and straightened, and cut to 1800 mm.
lengths. The tubes have an outside diameter of 40 mm. and a 1.5
mm. wall thickness. This is the condition of each tube as
imported.
After importation, the tubes are stretched to lengths of
5,000 mm., rolled to increase straightness and to reduce outside
diameter and wall thickness, then cut to lengths of 250 mm. and
the rough ends finished. Each tube is then coated with a
photoconductive layer which dedicates it for use as the drum in a
photocopier cartridge. Finally, plastic fittings are attached to
each end to complete the drum.
You liquidated the entries in question under the provision
for tubes and pipes of aluminum alloys, in subheading 7608.20.00,
Harmonized Tariff Schedule of the United States
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Annotated (HTSUSA). Protestant's counsel states that the E. D.
tubes are made to exacting specifications on machinery used only
for making such tubes, and that the tubes, as imported, have no
other commercial uses than to be completed into photocopier
cartridge drums. He maintains that the E. D. tubes are
unfinished articles having the essential character of parts used
in photocopying apparatus, and that the provision for parts and
accessories of photocopying apparatus, in subheading 9009.90.00,
HTSUSA, represents the proper classification. Merchandise
classifiable in this provision is temporarily free of duty in
heading 9902.90.90, HTSUS.
ISSUE:
Whether the E.D. tubes (pipes) are articles of chapter 76 or
unfinished parts of chapter 90.
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) 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
or chapter notes, and provided the headings or notes do not
require otherwise, according to GRIs 2 through 6.
The Explanatory Notes (ENs) constitute the Customs
Cooperation Council's 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.
Chapter 76, Note 1(e), HTSUS, in part defines Tubes and
pipes as hollow products, coiled or not, which have a uniform
cross section with only one enclosed void along their whole
length in the shape of circles, and which have a uniform wall
thickness. Relevant ENs at p. 1067 indicate that the tubes and
pipes of heading 76.08 may be manufactured by extruding a hollow
cast or pierced round ingot or by impact extrusion, among other
processes. The notes state specifically that the heading does
not cover tubes and pipes made up into specific identifiable
articles. Therefore, if the E.D. tubes are found to be specific
identifiable articles either finished or unfinished and, in
addition, to be suitable for use solely or principally with
apparatus of heading 9009 pursuant to Chapter 90, Note 2(b),
HTSUS, they would be classified in subheading 9009.90.00/
9902.90.90.
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In this particular case, the E.D. tubes undergo substantial
further processing after importation before they become specific
identifiable articles. As imported, they cannot be identified as
the articles they will ultimately become - drums for a
photocopier cartridge - or as any other specific article for that
matter. Therefore, the tubes are not precluded from
classification as tubes and pipes.
HOLDING:
Under the authority of GRI 1, HTSUS, the E.D. tubes are
provided for in heading 7608. They were correctly classified in
subheading 7608.20.00, HTSUSA, alluminum alloy tubes and pipes.
The protest should be denied. A copy of this decision
should be attached to the Customs Form 19 and mailed to the
protestant as part of the notice of action on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division