CLA-2 RR:TC:FC 959487K
Port Director
U.S. Customs Service
35 West Service Road
Champlain, New York 12919
RE: Application For Further Review of Protest No.0712-96-100612;
Ipex, Inc.; PVC (Tubing)
Electrical Conduit
Dear Port Director:
The following is our response to the referral by your
office, dated July 11, 1996, of the request for further review of
the above-referenced protest.
FACTS:
The consumption entry covering the imported merchandise was
liquidated on March 8, 1996, under the provision for other
articles of plastic, in subheading 3926.90.9890, Harmonized
Tariff Schedule of the United States (HTSUS) (1995), with duty at
the general rate of 5.3 percent ad valorem. A timely protest
under 19 U.S.C. 1514 was received on June 6, 1996. The
protestant requested reliquidation of the entry under the
provision for tubes, pipes, and hoses and fittings thereof, of
plastics (of polymers of vinyl chloride), in subheading
3917.23.00, HTSUS, with duty at the 1995 general rate of 3.1
percent ad valorem and free of duty under the special rate for
Canada.
A sample was submitted consisting of a straight piece of
polyvinyl chloride (PVC) tubing about 13 inches in length. The
printed matter on the sample indicates that it is a 1"/25mm Sch
40 Rigid PVC Nonmetalic Conduit for above ground and underground
use. A brochure was also submitted indicating that the tubing is
available is various sizes and fittings and that the tubing is
used to protect electrical wiring.
.
ISSUE:
The issue is whether the merchandise is excluded from
coverage in heading 3917, HTSUS, by virtue of Legal Note 8,
Chapter 39, HTSUS.
LAW AND ANALYSIS:
Heading 3917, HTSUS, provides for tubes, pipes and hoses and
fittings therefor (for
example, joints, elbows, flanges), of plastics. However, Legal
Note 8, Chapter 39, HTSUS, states as follows.
For the purposes of heading 3917, the expression "tubes,
pipes and hoses" means hollow products, whether
semimanufactures or finished products, of a kind generally
used for conveying, conducting or distributing gases or
liquids (for example, ribbed garden hose, perforated tubes).
This expression also includes sausage casings and other
lay-flat tubing. However, except for the last mentioned,
those having an internal cross section other than round,
oval, rectangular (in which the length does not exceed 1.5
times the width) or in the shape of a regular polygon are
not to be regarded as tubes, pipes and hoses, but as profile
shapes. (Emphasis added.)
The tubing in question is not of a kind generally used for
conveying, conducting or distributing gases or liquids. Rather,
the tubing is of a kind generally used as a protective covering,
in this case, for electrical wiring. Accordingly, based on Legal
Note 8, and prior Headquarters Rulings Letters (HRL), the Port
officials liquidated the entry under subheading 3926.90.9890,
HTSUS, as other articles of plastic.
The protestant opines that Legal Note 8 does not reference
an exclusion from heading 3917, HTSUS, for electrical conduit
tubing, that heading 3917 is not an actual use provision and,
therefore, the tubing is classified in heading 3917 by virtue of
Rule 1, of the General Rules of Interpretation (GRI), HTSUS.
We have previously considered Legal Note 8, Chapter 39, in
HRLs 082700, dated February 15, 1990, 082619, dated February 26,
1990, and 958309, dated December 19, 1995. In each of these
decisions, we held that the tubings were for protective coverings
rather than "of a kind generally used for conveying, conducting
or distributing gases or liquids" and, therefore, not classified
in heading 3917, HTSUS.
Additional U.S. Rules of Interpretation, HTSUS, 1.(b),
defines the term "actual use" as
"a tariff classification controlled by the actual use to which
the imported goods are put in the United States is satisfied only
if such use is intended at the time of importation, the goods are
so used and proof thereof is furnished within 3 years after the
date the goods are entered."
We agree that heading 3917, HTSUS, is not an actual use
provision by reason of Legal Note 8, Chapter 39. However,
Additional U.S. Rules of Interpretation 1.(a) also states that
"a tariff classification controlled by use (other than actual
use) is to be determined in accordance with the use in the United
States at, or immediately prior to, the date of importation, of
goods of that class or kind to which the imported goods belong,
and the controlling use is the principal use."
Heading 3917, HTSUS, is a use provision by virtue of Legal
Note 8, Chapter 39, because the note requires that the tubings,
pipes, and hoses are "of a kind generally used for conveying,
conducting, or distributing gases or liquids". No claim was made
that the PVC tubing is also used or suitable for use in
conveying, conducting, or distributing gases or liquids. The
only use claimed in the protest and brochure is for a protective
covering for electrical wiring. The PVC tubing in question is
not generally or principally used for conducting, or distributing
gases or liquids and is excluded from coverage under heading
3917, HTSUS.
The protestant notes that subheading 3917.32.20, HTSUS,
inserted in the tariff by Presidential Proclamation 6763, dated
December 23, 1994, and effective January 1, 1995, which provides
for a free general rate of duty for casing for bicycle
derailleur cables and casing for cable and cantilever brakes,
does not convey, conduct, or distribute gases or liquids and
opines that Legal Note 8, Chapter 39 does not exclude tubings
that are not "of a kind generally used" for such purposes. We
note that the classification of merchandise under subheading
3917.32.20, HTSUS, is not at issue in this case.
The HTSUS was effective on January 1, 1989, and contained
Legal Note 8, Chapter 39. That Note has not changed, is still in
effect, and it is controlling in the classification of
merchandise under heading 3917. That legal note limits the
coverage of tubes, pipes and hoses in heading 3917 to "of a kind
generally used for conveying, conducting or distributing gases or
liquids".
The protestant further opines that the electrical conduits
of plastic are classified by Canada in their harmonized system in
subheading 3917.23.0030. We are not bound by a Canadian
classification. No evidence was submitted to support the claim
and as a signatory to the "Convention" established under the
auspices of the Customs Co-operation Council, Legal Note 8 of
Chapter 39 is also applicable to Canada in the classification of
tubes, pipes and hoses in heading 3917.
We conclude that the PVC electrical conduit, a protective
covering for wires, is precluded from coverage in heading 3917,
HTSUS, by Legal Note 8 of Chapter 39, HTSUS.
HOLDING:
A PVC electrical conduit (plastic tubing), a protective
covering for electrical wires, as described under the caption
"FACTS", is classified in subheading 3926.90.9890, HTSUS (1995),
as other articles of plastics.
You are directed to deny the protest in full.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, Revised Protest Directive, dated August 4, 1993, a
copy of this decision attached to Customs Form 19, Notice of
Action, should be provided by your office to the protestant no
later than 60 days from the date of this decision and any
reliquidations of entries in accordance with this decision must
be accomplished prior thereto. Sixty days from the date of this
decision the Office of Regulations and Rulings will take steps to
make this decision available to Customs personnel via the Customs
Rulings Module in ACS and the public via the Diskette
Subscription Service, Freedom of Information Act and other public
access channels.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division