HQ 087406

April 1, 1991

CLA-2 CO:R:C:M 087406 CMS

CATEGORY: Classification

TARIFF NO.: 7407.10.10

7411.10.10

Mr. Patrick D. Gill, Esq.

Rode & Qualey

295 Madison Avenue

New York, NY 10017

RE: Copper Tubes; Pipes; Hollow Profiles; Rifled; Ridged;

Grooved; Threaded; Finned; Gilled; Enhanced; Heat Transfer

Dear Mr. Gill:

Your request dated May 30, 1990, on behalf of Sumitomo

Corporation of America, for a classification ruling on a certain

tubular copper product has been referred by the Regional

Commissioner of Customs, New York, to Customs Headquarters for a

reply.

FACTS:

The merchandise is described by the importer as Sumitomo

enhanced seamless copper \"tubes\". The product is of refined

copper and has approximately 50 to 65 grooves which run helically

throughout the inner surface of the tube. The grooves are

approximately .15 to .3 mm in depth or height. The outer

diameter of the tube is approximately 3/8\". The tube is used in

heat exchange products, particularly in air conditioners and

refrigerators.

The grooves have a rifling effect on the fluid within the

tube so that the fluid is dispersed and contacts more of the

inner surface, particularly near the top of the tube. The

grooves also increase the total inner surface area of the tube so

that there is more surface area for the fluid to contact. By

causing more fluid to contact more surface area, the tube\'s heat

transfer properties are substantially improved.

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ISSUE:

Is the merchandise classified as copper profiles in Heading

7407, or as copper tubes or pipes in Heading 7411?

LAW AND ANALYSIS:

The Harmonized Tariff Schedules of the United States

Annotated (HTSUSA) superseded the TSUS effective January 1,

1989\. The HTSUSA provides that the classification of articles is

governed by the General Rules of Interpretation (GRI\'s). GRI 1

states in pertinent part that \"\...classification shall be

determined according to the terms of the headings and any

relative section or chapter notes\...\".

Heading 7407 in pertinent part describes copper profiles.

Heading 7411 describes copper tubes and pipes.

Chapter 74 Note 1(h) defines \"tubes and pipes\" as follows:

\(h\) Tubes and pipes

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. \...Tubes and pipes of

the foregoing cross sections may be\...threaded\...

The product under consideration has a uniform cross section.

If the product has a uniform wall thickness it would meet

the definition for \"tubes and pipes\". If it does not have a

uniform wall thickness, it might still meet the definition for

\"tubes and pipes\" if the lack of a uniform wall thickness is due

to the product being \"threaded\".

An analysis of the product reveals that it does not have a

uniform wall thickness. The outer surface is smooth while the

inner surface is grooved. The grooves form a pattern of ridges

and troughs. The wall thickness from the outer surface of the

product to the tip of an inner ridge is greater than the wall

thickness from the outer surface to the lowest point of an inner

trough; an infinite number of different wall thicknesses exist in

between these two points of measurement.

The lack of a uniform wall thickness is further illustrated

by the Sumitomo product brochure, which at p. 15 provides

measurements for different wall thicknesses (e.g., \"Wall

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Thickness\" and \"Average W.T. \[Wall Thickness\]\"). The difference

is apparently accounted for by the ridges and troughs, which are

described in the product brochure as \"fin\[s\]\".

The lack of a uniform wall thickness is not due to the

product being \"threaded\". The pattern of ridges and troughs

which the importer argues are \"threads\" are helical grooves

which exist to improve the heat transfer properties of the tube.

The grooves do not have the function of threads and the product

does not satisfy the meaning of the term \"threaded\" for tariff

classification purposes.

Guidance on the meaning of the term \"threaded\" is derived

from the General Explanatory Notes to Chapter 73 (referenced by

the Explanatory Notes to Heading 7306 which are adopted, mutatis

mutandis, by the Explanatory Notes to Heading 7411). In

distinguishing between tubes and hollow profiles, the General

Explanatory Notes to Chapter 73, p. 1011 provide that tubes may

be \"\...threaded and coupled or not\...\" (emphasis added). The

addition of the words \"and coupled or not\" immediately after the

term \"threaded\" denotes an intent that Chapter 73 and 74 tubes

are \"threaded\" for the purpose of being fastened or coupled.

This is not the function of the grooves in the tubes under

consideration, which exist to increase the heat transfer

properties of the tube.

Further, the General Explanatory Notes to Chapter 73 provide

that hollow profiles are products \"\...not conforming to the above

definition \[for tubes and pipes\] and mainly those not having

their inner and outer surfaces of the same form.\" The tubular

product under consideration meets the definition of hollow

profiles in the General Explanatory Notes to Chapter 73.

The product under consideration is defined as a profile by

Chapter 74 Note 1(e), which provides:

\(e\) Profiles

Rolled, extruded, drawn, forged or formed products,

coiled or not, of a uniform cross section along their

whole length, which do not conform to any of the

definitions of bars, rods, wire, plates, sheets, strip

foil, tubes or pipes\...

The product under consideration does not conform to the

definition of \"\[t\]ubes and pipes\" or any of the other definitions

of Chapter 74 articles except \"\[p\]rofiles\".

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The importer argues that the product cannot be classified

as \"profiles\" because it is known in the trade as \"tube\" and not

as \"profiles\". Assuming, arguendo, that the product is known by

some in the trade as tube, it would still be classified as a

profile. \"It is not enough that an article be called a tariff

term in the trade vernacular. There must also be a showing made

that the article embodies the salient characteristics of the

tariff term claimed.\" Clipper Belt Lacer Co., Inc. v. United

States, CIT , Slip Op. 90-22 (March 13, 1990), p. 15.

A showing has not been made that the product embodies the

salient characteristics of the tariff term \"tubes\" defined by

Chapter 74 Note 1(h). To the contrary, the product embodies the

salient characteristics of \"\[p\]rofiles\" defined by Chapter 74

Note 1(e), a relative note according to which GRI 1 provides the

article shall be classified.

The importer makes three arguments for the proposition that

the General Explanatory Notes to Chapter 73 are inapplicable, and

at best are not helpful.

First, it is argued that by referring to the Explanatory

Notes to Headings 7304 to 7306, the Explanatory Notes to Heading

7411 exclude reference to the General Explanatory Notes to

Chapter 73. This is simply not the case. The Explanatory Notes

to Heading 7306 (adopted mutatis mutandis by the Explanatory

Notes to Heading 7411) specifically refer to the General

Explanatory Notes \"\...concerning the distinction between tubes

and pipes and hollow profiles.\" This is exactly the issue on

which this ruling turns, and nothing could be more relevant than

guidance on the question of whether an article is a tube or a

profile. The language in the Explanatory Notes to Heading 7411

that the Explanatory Notes to Heading 7304 to 7306 are adopted

\"\...as concerns the scope of the heading\...\" supports the

position that the General Explanatory Notes to Chapter 73 were

intended to be most applicable and helpful.

Second, it is argued that the General Explanatory Notes to

Chapter 73 are subsidiary to Chapter 74 Note 1, particularly

regarding the reference to surface form. This contention,

however, has no impact on the applicability of the General

Explanatory Notes to Chapter 73. There is no inconsistency

between these Notes and Chapter 74 Note 1 in that they both

acknowledge that tubes may be \"threaded\". The General

Explanatory Notes to Chapter 73 do not conflict with Chapter 74

Note 1, but instead offer valuable guidance on the meaning of the

word \"threaded\".

Third, it is argued that the General Explanatory Notes to

Chapter 73 discuss the distinction between tubes and pipes in

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the context of describing how some finned or gilled tube is still

classified as tube. The General Explanatory Notes to Chapter 73,

however, do not even name finned or gilled tube; the Explanatory

Notes are in no way limited to distinguishing between finned or

gilled tubes and hollow profiles.

The importer argues that the product is threaded because it

satisfies definitions of threads for the many articles besides

tubes which can be threaded (e.g., screws). Assuming, arguendo,

that the term \"threaded\" as it relates to the classification of

tube in Chapter 74 was not intended to refer to fastening or

coupling, the product would still not be classified in Heading

7411\. The importer refers to parts of definitions which merely

describe the physical features of threads, or satisfy brief

descriptions of threads which only refer to physical features.

The term \"threaded\", however, as it is generally used for

the many types of threaded articles, has physical and functional

connotations. The McGraw Hill Encyclopedia of Science and

Technology, 6th Ed., Vol. 18 (1987), p. 329 provides:

Threading

The forming of a ridge and valley of uniform cross

section which spiral about the inner or outer diameter

of a cylinder or cone in an even and continuing manner.

The work must be produced with sufficient uniformity

and accuracy so that the resulting threaded part will

accomplish its intended purpose of fastening, transmitting

motion or power, or measuring.

(Underscoring added)

The importer refers to other definitions which provide that

threading has other functions such as adjusting or obtaining a

mechanical advantage. The importer argues that because some

definitions expand on the meaning stated in McGraw Hill, supra,

then the general meaning of threaded must also be expansive

enough to cover the product under consideration.

This argument is unpersuasive. However expansive the

meaning of \"threaded\" may be, the contention that the term

encompasses approximately 50 to 65 internal grooves ranging in

depth from .15 to .3 mm, which function to improve the heat

transfer properties of copper heat exchange tube approximately

3/8\" in diameter, has not been supported.

The only authority provided by the importer which likens the

grooves to threads conflicts with the manufacturer\'s own product

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brochure, which describes the grooves not as threads, but as

\"fin\[s\]\". The importer cites 59 Canadian Journal of Chemical

Engineering (December, 1981), p. 693, which states that certain

\"V-threads\" were cut in the inner surface of pipe to create

surface roughness. The Sumitomo product brochure, however,

describes the grooves not as V-threads or any other type of

thread, but as \"fin\[s\]\". The brochure at p. 15 describes the

product not as threaded tube, but as \"Ripple Finned Tube\" which

is \"\...the tradename of internally finned tubes newly developed

by SUMITOMO, which is used for air-conditioners and

refrigerators.\"

The heat transfer function of the grooves is similar to the

function of the fins in the product described by the American

Society for Testing Materials, in ASTM B359-78, 3.1.1.3, as:

tube, heat exchanger with integral fins- a tube having

a series of metallic ribs on the outside or inside

surface either parallel to the longitudinal axis or

circumferentially extended from the tube to increase

the effective surface area for heat transfer applications.

The fins may be mechanically applied, drawn, or integrally

extended from the tube wall.

The importer argues that the product under consideration is

distinguished from the product described by the ASTM because the

Sumitomo grooves are helical, and not circumferential or

parallel. Assuming, arguendo, that the Sumitomo tubes are

different in this respect, this is a distinction without a

difference. The function of the grooves for improving heat

transfer properties cannot be denied, and the specific

description of the helical grooves in the product brochure not as

threads but as \"fin\[s\]\" has not been overcome.

In fact, the Explanatory Notes to Heading 7411 provide that

the heading does not cover \"\[h\]ollow profiles including finned or

gilled tubes and pipes obtained by extrusion (heading 74.07)\",

and the Explanatory Notes to Heading 7407 provide that the

heading covers \"\...hollow profiles including finned or gilled

tubes and pipes obtained by extrusion.\" (The Explanatory Notes

do not provide that finned tube must be obtained by extrusion to

be excluded from Heading 7011; the finned tube exemplar is

illustrative of an article, like the product under consideration,

which does not conform to the Chapter 74 Note 1(h) definition of

tube).

The importer alternatively argues that the grooves satisfy

the general meaning of threads in that they transmit motion or

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power. It is argued that the grooves have a rifling effect and

translate the linear flow of fluid to rotary flow. No motion or

power is transmitted, however, from the grooves to the fluid, or

from the fluid to the fluid. The grooves do not transmit motion

or power like threaded articles (e.g., like a screw jack in which

a threaded rod turned in a rotary fashion transmits power to the

jack\'s collar, causing it to move up and down in a linear fashion

to raise or lower an object, e.g., a car with a flat tire).

Furthermore, the rifling effect is only one of two of the

grooves\' effects, the second being an increase in inner surface

area. The rifling effect might be described as just what its

name implies, i.e., \"rifling\" (like that in the barrel of a gun),

which is not described as threading. The increased surface area

effect is similar to that created by fins, which are not threads

and are even specifically identified in the Explanatory Notes to

Heading 7011 as features which would exclude articles from being

classified as tubes in Heading 7011.

The Sumitomo tubular product is defined as \"\[p\]rofiles\" by

Chapter 74 Note 1(e) and is described by Heading 7407. The

product is classified as profiles of refined copper, in

7407.10.10, HTSUSA.

A similar issue was decided in HQ Ruling 087593 (April 1,

1991\)

HOLDING:

The Sumitomo tubular product under consideration is

classified as profiles of refined copper, in 7407.10.10, HTSUSA.

Sincerely,

John Durant, Director

Commercial Rulings Division