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HQ 950303


February 26, 1992

CLA-2 CO:R:C:M 950303 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 7306.90.10

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

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