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HQ 959487




September 16, 1997

CLA-2 RR:TC:FC 959487K

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.90.9890

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.
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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

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