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HQ 089802


SEPTEMBER 27 1991

CLA-2:CO:R:C:M 089802 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 7306.40.10, 7306.90.50, HTSUSA

Paul S. Anderson, Esq.
Sonnenberg, Anderson, O'Donnell & Rodriguez 200 West Adams Street, Suite 2625
Chicago, Illinois 60606

RE: Chimney Pipe Sections of Stainless Steel; Double Walled and Insulated; Ruling 087434, Dated October 18, 1990

Dear Mr. Anderson:

In your letter of May 8, 1991, on behalf of GSW Heating Products Company, Ontario, you inquire as to the tariff classification of certain double walled and insulated chimney pipe sections from Canada. Our decision follows.

FACTS:

The chimney pipe section model # JSC6SA1 is representative of the sections in issue here. A submitted sample, 12 inches long, is of double walled 100% stainless steel construction and consists of two concentric hollow profiles. The outer wall measures 8 inches in diameter and inner wall 5 1/2 inches in diameter.

The walls are made separately from stainless steel sheets cut to appropriate length and bent to the desired circumference. The sheets are then spot welded in two places to temporarily preserve their circular shape, after which they are put through a machine which imparts a permanent rolled seam. This process passes over the spot welds and involves rolling one side of the sheet over the other and crimping them together under pressure. The outer wall is further sealed with a silicon sealer. The walls are then capped on one end with a twist lock connector, the internal space between the walls filled with a mixture of rockwool and silica, and the other end similarly capped. The insulation for these pipe sections enables them to function at temperatures up to 2100 degrees F.

You indicate that shipments of this merchandise have been entered at Buffalo and estimated duties deposited under subheading 7306.40.1000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), other tubes, pipes and hollow profiles, welded, of stainless steel.

ISSUE:

Whether the double walled pipe sections are welded tubes, pipes and hollow profiles, other tubes, pipes and hollow profiles, or other articles of iron or steel.

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 Harmonized Commodity Description And Coding System 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.

Relevant ENs at p. 1011 indicate in part that tubes and pipes of Chapter 73 are concentric hollow products, of uniform cross-section, with only one enclosed void along their whole length. Hollow profiles, on the other hand, are hollow products not conforming to the above definition and mainly those not having their inner and outer surfaces of the same form. We regard the double walled chimney pipe sections as hollow profiles for tariff purposes. Moreover, there is no argument made, nor evidence of record that the insulation makes these pipe sections something other than hollow profiles. They are simply insulated hollow profiles and are not "articles" of iron or steel.

As to whether the pipe sections are welded hollow profiles of stainless steel in subheading 7306.40, or other hollow profiles of alloy steel, in subheading 7306.90, ENs describing the welded tubes and pipes of heading 7305 apply by appropriate substitution of terms to the articles of heading 7306. The notes
at p. 1017 indicate that in the case of welded articles, the abutting edges are welded without filler metal by flash-welding, by electric resistance or induction welding, or by submerged arc welding with filler metal and gas protection to prevent oxidation. We conclude that spot welding, being temporary in this case to preserve the circular shape of the product prior to roll seaming, is insufficient to qualify a hollow profile as welded for purposes of subheading 7306.40. The articles in issue have rolled seams, not welded seams.

You state that the instant merchandise is distinguishable from the double walled pipes for gas vent systems the subject of ruling 087434, dated October 18, 1990, primarily because your chimney pipe sections are insulated. The concentric aluminum pipes in ruling 087434 were not insulated, but were spot welded then rolled seamed. Ruling 087434 held that these pipe sections were classifiable as other welded tubes, pipes and hollow profiles, according to wall thickness. This ruling will be modified to reflect that the pipes are not considered welded for tariff purposes, but are of rolled seam construction.

HOLDING:

Under GRI 1, the doubled walled chimney pipe sections represented by model JSC6SA1 are provided for in heading 7306, other tubes, pipes and hollow profiles, of iron or steel. They are classifiable in subheading 7306.90.5000, HTSUSA, other tubes, pipes and hollow profiles of alloy steel. The rate of duty is 4.9 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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