CLA-2:CO:R:C:M 952301 JAS
District Director of Customs
2039 Federal Office Bldg.
Seattle, WA 98174
RE: Copper Tubes, Tubing, Seamless; Heading 7411; Copper
Profiles; Heading 7407; Internally Grooved Tubing;
Finned Tubing; PRD 3001-90-000607
Dear Sir:
This is our decision on Application for Further Review of Protest No. 3001-90-000607, dated April 6, 1990, filed on behalf of Non-Ferrous International Corp., against your liquidation of an entry of seamless copper tubing.
FACTS:
The commercial invoice and packing list describe the merchandise in issue as "phosphorized seamless inner grooved copper tube, in coils." The Customs Form 6445 states only that the tubes have grooves that run their whole length, but there is no further description except for an indication that they may be threaded on one or both ends. A related Customs Form 6431 mentions descriptive literature and a letter from the importer but these and a previously submitted sample were not forwarded to Headquarters. The CF 6431 does, however, describe "internally finned tubing of copper." Tubes of this type are commonly used in heat exchangers as the finned interior enhances heat transfer capability.
The merchandise was entered under the provision for seamless tubes and pipes of copper, in subheading 7411.10.10, Harmonized Tariff Schedule of the United States (HTSUS). Protestant argues that tubes and pipes of heading 7411 may be threaded and that grooving is similar to threading so as to qualify the goods under that heading. That the grooves and fins are internal and run the length of the tubing is not mentioned.
Noting that the tubing lacked both a uniform cross section and a uniform wall thickness, and that copper profiles need not - 2 -
have a uniform wall thickness, you liquidated the entry under the provision for profiles of refined copper, in subheading 7407.10.10, HTSUS.
ISSUE:
Whether the merchandise is "tubes and pipes" for tariff purposes, or "profiles" of copper.
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 or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.
Substantially similar merchandise was the subject of HQ 087406, dated April 1, 1991, the contents of which are incorporated by reference in this decision. Essentially, tubes and pipes of heading 7411 must have a uniform cross section with only one enclosed void along their whole length and must also have a uniform wall thickness. Chapter 74, Note 1(h), HTSUS. The copper tubes in issue do not have a uniform wall thickness because the interior grooves or fins create a pattern of ridges. Thus, the wall thickness from the smooth outer surface of these tubes to any one point on an interior ridge will vary, thus creating different wall thicknesses along the length of the tube. the inner surface is grooved along the entire length. There is no compelling argument made that these fins or grooves are the functional equivalent of threads which note 1(h) allows. Heading 7411 is therefore eliminated from consideration.
The copper tubes in issue have a uniform cross section along their whole length and do not conform to the definition of "tubes and pipes" or to any of the other definitions in chapter 74. They are profiles of heading 7407. Chapter 74, Note 1(e), HTSUS. As previously noted, uniform wall thickness is not a requirement under this note.
HOLDING:
Under the authority of GRI 1, internally finned or grooved copper tubing is provided for in heading 7407. Classification is in subheading 7407.10.10, HTSUS, a provision for profiles of refined copper.
The protest should be denied. A copy of this decision should be attached to the Customs Form 19 and mailed to the - 3 -
protestant, through his representative, as part of the notice of action on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division