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HQ 089566

September 5, 1991

CLA-2 CO:R:C:M 089566 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 7608.20.0030; 9009.90.0030, 9902.90.90

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

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.

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

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