CLA-2 CO:R:C:M 950303 KCC
Alex Romero, Jr.
A. F. Romero & Co., Inc.
477 Railroad Blvd. - P.O. Box 989
Calexico, California 92231-0989
RE: Double Walled Pipes; Reconsideration of 087434; 950353
modified 087434; General EN to Chapter 73; hollow profiles;
Note 5, Section XV; 7326.90.90; EN 73.26; 7307; pipe fitting
Dear Mr. Romero:
This is in reference to your letter dated August 21, 1991,
on behalf of American Metal Products, requesting reconsideration
of Headquarters Ruling Letter (HRL) 087434 dated October 18,
1990, concerning the tariff classification of double walled pipes
under the Harmonized Tariff Schedule of the United States
(HTSUS).
FACTS:
The merchandise at issue is double walled pipes. The pipes
are round and will be either 3, 4, 5 or 6 inches in diameter
(76.2, 101.6, 127.0, and 152.4 mm) and from 6, 12, 24 inches and
3, 4, and 5 feet in length. They will consist of an inner pipe
of aluminum alloy within an outer pipe of galvanized steel. The
aluminum alloy pipes will have a wall thickness of 1.012 inch.
Flue gases flow in the inner pipe while the outer pipe is
corrosion-resistant and gives strength, safety and durability.
The air space between the two pipes provides insulation against
heat loss and keeps the warmer flue gases on the rise, thus
minimizing pollution and condensation damage.
HRL 087434 held that the double walled pipes with a circular
cross section and a wall thickness of less than 1.65 mm are
classified in subheading 7306.30.10, HTSUS, and that the double
walled pipes with a circular cross section and a wall thickness
of 1.65 mm or more are classified under subheading 7306.30.50,
HTSUS. Both tariff provisions provide for other tubes, pipes and
hollow profiles (for example, open seamed or welded, riveted or
similarly closed), of iron or steel. Additionally, HRL 087434
held that double walled pipes with an oval cross section are
properly classified under the appropriate subheadings of heading
7306, HTSUS, which provide for noncircular cross sections.
Additionally, HRL 087434 was modified in HRL 950353 dated
September 27, 1991, which stated that the double walled pipes
were not welded for subheading 7306.30, HTSUS, purposes. The
double walled pipes have open seams produced by overlapping and
rolling the edges. The reference in HRL 087434 to spot welding
was to part of the process of joining the pipes together. HRL
950353 held that the double walled pipes are classified under
subheading 7306.90.10, HTSUS, as other tubes, pipes and hollow
profiles.
You state that the double walled pipes at issue are
manufactured parts for gas venting systems and cannot be used for
any other purpose. However, you believe that classification of
the double walled pipes under a parts provision is precluded
because the pipes are versatile in that they can be utilized in
commercial, industrial and domestic applications and cannot be
identified as a part of a particular article. Therefore, you
contend that the double walled pipes are properly classified
under subheading 7326.90.90, HTSUS, which provides for other
articles of iron or steel. As an alternative tariff provision,
for lengths of 12 inches or less, you suggest heading 7307,
HTSUS, which provides for tube or pipe fittings of iron or steel.
You contend that this is an appropriate tariff provision because
pipe lengths of 12 inches or less can be considered pipe
fittings.
ISSUE:
Are the double walled pipes classified under heading
7306.90.10, HTSUS, which provides for other tubes, pipes and
hollow profiles, or under subheading 7326.90.90, HTSUS, which
provides for other articles of iron or steel?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is
governed by the General Rules of Interpretation (GRI's). GRI 1,
HTSUS, requires that classification be determined first according
to the terms of the headings of the tariff and any relative
section or chapter notes and, unless otherwise required,
according to the remaining GRI's, taken in order.
Heading 7306, HTSUS, provides for "Other tubes, pipes and
hollow profiles (for example, open seamed or welded, riveted or
similarly closed), of iron or steel...." General Explanatory
Note (EN) to Chapter 73 of the Harmonized Commodity Description
and Coding System (HCDCS), states that "[f]or other purposes of
this chapter, the expressions 'tubes and pipes' and 'hollow
profiles' have the following meanings hereby assigned to them:
(1) Tubes and pipes
Concentric hollow products, of uniform cross-section with
only one enclosed void along their whole length, having
their inner and outer surfaces of the same form. Steel
tubes are mainly of circular, oval, rectangular (including
square) cross-sections but in addition may include
equilateral triangular and other regular convex polygonal
cross-sections. Products of cross-section other than
circular, with rounded corners along their whole length, and
tubes with upset ends, are also to be considered as tubes.
They may be polished, coated, bent (including coiled
tubing), threaded and coupled or not, drilled, waisted,
expanded, cone shaped or fitted with flanges, collars or
rings.
(2) Hollow profiles
Hollow products not conforming to the above definition and
mainly those not having their inner and outer surfaces of
the same form."
HCDCS, Vol. 3, p. 1011. The Explanatory Notes, although not
dispositive, are to be looked to for the proper interpretation of
the HTSUS. 54 Fed. Reg. 35127, 35128 (August 24, 1989).
According to the above descriptions, the double walled pipes at
issue are defined as hollow profiles for tariff purposes. The
double walled pipes have two enclosed voids along their whole
length and the inner surface is composed of aluminum alloy,
whereas the outer surface is composed of galvanized steel.
Chapter 73 is within Section XV, making the Section XV Notes
applicable to the classification of this merchandise. Note 5,
Section XV, HTSUS, states that classification of composite
articles "...of base metal (including articles of mixed materials
treated as articles of base metal under the Interpretative Rules)
containing two or more base metal are to be treated as articles
of the base metal predominating by weight over each of the other
metals...." The double walled pipes are composite articles
consisting of two pipes, an inner aluminum alloy pipe and an
outer steel pipe. Steel is the base metal that predominates by
weight.
Therefore, the double walled pipes are considered to be "of
steel" for tariff purposes. We are of the opinion that the
double walled pipes are properly classified under subheading
7306.90.10, HTSUS, as "...hollow profiles (for example, open
seamed or welded, riveted or similarly closed), of iron or
steel...Other...Of iron or nonalloy steel." The double walled
pipes are spot welded which is part of the process of joining the
pipes together. The seam in this case is not considered welded
for tariff purposes but is of rolled seam construction.
Therefore, the double walled pipes are classified under
subheading 7306.90.10, HTSUS.
Subheading 7326.90.90, HTSUS, provides for "Other articles
of iron or steel...Other...Other...Other...." EN 73.26 states
that "[t]his heading covers all iron or steel articles obtained
by forging or punching, by cutting or stamping or by other
processes such as folding, assembling, welding, turning, milling
or perforating other than articles included in the preceding
headings of this Chapter or covered by Note 1 to Section XV or
included in Chapter 82 or 83 or more specifically covered
elsewhere in the Nomenclature." HCDCS, Vol. 3, p. 1037. The
double walled pipes at issue do not satisfy the terms of this
subheading because they are more specifically covered elsewhere
in the Nomenclature, specifically within heading 7306, HTSUS.
Heading 7307, HTSUS, provides for "Tube or pipe fittings
(for example, couplings, elbows, sleeves), of iron or steel...."
EN 73.07 states that heading 7307, HTSUS, "covers fittings of
iron or steel, mainly used for connecting the bores of two tubes
together, or for connecting a tube to some other apparatus, or
for closing the tube aperture." HCDCS, Vol. 2, p. 1019. Certain
products, such as pipe nipples, are classified as either pipes
and tubes or as fittings depending on whether they measure 12
inches or less or over 12 inches. But this is because the pipe
fittings industry considers the nipples to be fittings only if
they measure up to 12 inches. The "12 inch rule" does not apply
across the board to all pipes and tubes. The double walled pipes
under consideration are considered to be pipes by that industry.
The pamphlets contained in HRL 087434 depict both the double
walled pipes and fittings such as elbows and tees, which connect
the double walled pipes. The items to be classified in this
heading are items such as couplings, elbows, or sleeves that are
meant to join pipes together. For tariff purposes, the double
walled pipes at issue are defined as "hollow profiles." They are
not the class or kind of "fittings" described in this heading
and, therefore, are not properly classified under this heading.
HOLDING:
The double walled pipes are properly classified under
subheading 7306.90.10, HTSUS, as "...hollow profiles (for
example, open seamed or welded, riveted or similarly closed), of
iron or steel...Other...Of iron or nonalloy steel. This tariff
provision is dutiable at the rate of 1.9 percent ad valorem.
HRL 087434 as modified by HRL 950353 is affirmed.
Sincerely,
John Durant, Director
Commercial Rulings Division