# HQ 966927

**June 21, 2004**

## CLA-2 RR:CR:GC 966927 RSD

**CATEGORY:** Classification

**TARIFF NOs.** 7304.39.00, 7306.30.50, 7307.91.50.70, 7307.99.50.60

Mr. Barry Morgan

General Manager

Esser Twin Pipes, LLC

147 Airpark Industrial Road

Alabaster, Alabama 35007

**RE:** Steel pipe, tapered pipes and pipe fittings that are used in
concrete pumping equipment; NY J8873 affirmed

Dear Mr. Morgan:

This is in response to your letter of November 20, 2003, requesting
reconsideration of New York Ruling (NY) J88733, dated October 15, 2003,
concerning the tariff classification under the Harmonized Tariff
Schedule of the United States (HTSUS) of steel pipes, tapered pipes and
pipe fittings used with concrete pumping machines. The National
Commodity Specialist Division of U.S. Customs and Border Protection,
(CBP), New York, forwarded your letter with its attachments to the
Office of Regulations and Rulings for a decision on your request for
reconsideration.

**FACTS:**

Esser Twin Pipes imports parts for Original Equipment Manufacturers
(OEMs) of concrete pumps in the United States. You indicate that more
than 98 percent of Esser's sales consists of four main articles that are
used with concrete pumps. These articles are twin straight length wall
pipes, twin wall reducers, twin wall bends, and twin wall flanges of
various dimensions and chemistries.

Concrete pumps are mobile units that are used to deliver concrete at
construction sites where it is necessary to transport concrete across
some distance (horizontal or vertical) from the mixer truck. From the
mixer, the concrete is poured into a hopper and moved by pistons through
the deck assembly that is mounted on the truck chassis. A pump located
at the end of the deck assembly is used to move the concrete through the
boom assembly. The boom assembly can be as long as 61 meters and can be
swiveled, raised and lowered. When the job is completed, the boom
assembly is folded down onto the deck assembly before the truck can be
moved. The hydraulic and pneumatic transport of concrete through the
pump causes high wear in the pipes. Each of the parts of the deck
assembly and the boom assembly must be precision engineered of
wear-resistant and pressure-resistant materials.

In addition, they must be customized for booms for varying lengths and
for the individual specifications of the competing OEMs.

The twin pipes consist of two layers, an inner layer of carbon steel
(similar to Grade 1045 steel) and an outer layer of alloy steel. The
inner and outer layer pipes are produced separately. The inner pipe is
inserted into the outer pipe, heated and then quenched with water. The
water causes the outer pipe to shrink and bind itself to the inner pipe,
which retains its diameter. After hardening, the pieces are cut to the
exact length with an abrasive cut-off machine. The flanges are then
welded on while the inner pipe is cooled.

Esser produces specialized twin layer pipeline components in various
sizes up to a maximum inside diameter (ID) of 150 mm. The pipe sizes
vary according to their intended locations throughout the truck mounted
boom pumps. These pipes are not common sized pipes, but are made to the
specifications of each model of each OEM.

The second product under consideration is called a reducer. Reducers are
tapered cylinders that are used in the deck assembly to connect
different sized pipeline components. The reduction of size in the
pipeline components is necessary because the boom of the concrete pump
cannot support all the weight of the largest pipeline components. A
process that is similar to the process used to make the straight-length
pipeline components is employed to make the reducers. They are
customized to the specifications of each OEM.

The third product under consideration is referred to as bends. Bends are
curved sections of twin layer material used throughout the deck and boom
assembly to connect one pipeline component to another in a way that
enables a change of direction in the flow of concrete or to allow the
boom to be maneuvered, folded and unfolded. The process used to
manufacture the bends is similar to the process used to produce
straight-length pipeline components and the reducers. They are
fabricated using a stem hardening process on the cast inner pipe and
mounted in a mild steel outer pipe and fitted with patented Esser twin
cast flanges at both ends.

The fourth product being considered is the twin cast flanges. They are
designed to be attached to each end of all pipeline components. When
coupled together using the correct gasket, a sealing joint is formed
that allows for the pumping of concrete as well as the manipulation of
the boom. The twin cast flanges are made of mild steel similar to ST 52.
The outer layer is machined to the OEM specifications. It is necessary
to import loose twin cast flanges to permit the pipeline components to
be cut to the length required by the customers before they are
permanently welded in place. The finished straight line pipe components,
reducers, flanges, and bends are sold directly to OEMs of concrete
pumping equipment in the United States as well as to numerous pump end
users.

**ISSUES:**

Whether the seamless straight length steel pipes and reducers are
classified in heading 7304, HTSUS, as tubes, pipes and hollow profiles
seamless of iron or steel or in heading 8413, HTSUS as parts of concrete
pumps.

Whether the seamed and welded steel pipes and reducers are classified in
heading 7306, HTSUS as other tubes, pipes and hollow profiles of iron or
steel or in heading 8413, HTSUS as parts of concrete pumps.

Whether the bends and flanges are classified in heading 7307, HTSUS as
tube or pipe fittings of iron or steel, or in heading 8413 as parts of
concrete pumps.

**LAW AND ANALYSIS:**

Classification under the HTSUS is made in accordance with the General
Rules of Interpretation (GRI's). GRI 1 provides that the classification
of goods shall be determined according to the terms of the headings of
the tariff schedule and any relative section or chapter notes. In the
event that the goods cannot be classified solely on the basis of GRI 1,
and if the headings and legal notes do not otherwise require, the
remaining GRIs may then be applied.

The Harmonized Commodity Description And Coding System Explanatory Notes
(EN's) constitute the official interpretation of the Harmonized System.
While not legally binding on the contracting parties, and therefore not
dispositive, the EN's 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
EN's should always be consulted. See T.D. 89‑80, 54 Fed. Reg. 35127,
35128 (Aug. 23, 1989).

The HTSUS provisions under consideration are as follows:

7304 Tubes, pipes and hollow profiles, seamless, of iron (other than
cast iron) or steel:

Other, of circular cross section of iron or nonalloy steel

\* \* \* \* \* \* \* \* \* \* \*

7306 Other tubes, pipes and hollow profiles (for example, open seamed or
welded, riveted or similarly closed), of iron or steel:

\* \* \* \* \* \* \* \* \* \* \* \*

7307 Tube or pipe fittings (for example, couplings elbows, sleeves), of
of iron or steel:

\* \* \* \* \* \* \* \* \* \* \* \*

8413 Pumps for liquids, whether or not fitted with a measuring device:

liquid elevators; parts thereof:

\* \* \* \* \* \* \* \* \* \* \* \*

The ENs provide a general description of the term pipes and tubes. They
also indicate that pipes, tubes and fittings classified in the relevant
headings of Chapter 73 of the HTSUS will often used be in various
structures and mechanical systems.

With respect to pumps, EN 84.13 explains that:

> This heading covers most machines and appliances for raising or
> otherwise continuously displacing volumes of liquids (including molten
> metal and wet concrete), whether they are operated by hand or by any
> kind of power unit, integral or otherwise.

You contend that the subject merchandise is properly classified in
heading 8413, HTSUS, as parts of concrete pumps because the pipes,
reducers, flanges, and bends are specially designed to work only with
specified concrete pumps to transport liquid concrete. Furthermore, you
point out the articles have no other plausible usage other than working
with concrete pumps. In determining whether articles such as the subject
merchandise are considered parts, it is a well-established rule that a
part of an article is something necessary to the completion of that
article. It is an integral, constituent, or component part, without
which the article to which it is to be joined, could not function as
such article*. United States v. Willoughby Camera Stores, Inc*., 21 CCPA
322, 324, T.D. 46,851 (1933), *cert denied*, 292 U.S. 640 (1934). The
rule set out in *Willoughby Camera* has been modified over the years so
that a device may be a part of an article even though the device is not
necessary to the operation of the article, provided that once the device
is installed the article cannot function properly without it. To meet
this test, the device must be dedicated for use upon the article. See
*Beacon Cycle & Supply Co., Inc. v. United States*, 81 Cust. Ct. 46,
50-51, C.D. 4764 (1978).

> Additional U.S. Rule of Interpretation 1(c) provides:
>
> In the absence of special language or context which otherwise requires
> \... a provision for parts of an article covers products solely or
> principally used as a part of such articles but a provision for
> \"parts\" or \"parts and accessories\" shall not prevail over a
> specific provision for such part or accessory\[.\]

By its terms, Additional U.S. Rule 1(c), HTSUS, applies in the absence
of special language or context which otherwise requires. Section XVI,
Note 2 is such special language or context, but only where the competing
provisions at issue are both within Section XVI. See *Nidec Corp. v.
United States*, 861 F. Supp. 136, *aff'd* 68 F. 3d 1333 (Fed Cir. 1995).
However, in this case, because the competing provisions, headings 7304,
7306, 7307 HTSUS, are outside of Section XVI, Note 2 to that section
does not provide special language or context which supercedes Additional
U.S. Rule of Interpretation 1(c), HTSUS.

In the case at hand, we note that the concrete pumps can operate without
the pipes, reducers, bends, and flanges. Thus the subject merchandise is
not necessary to complete concrete pumps. In addition, the pipes and the
other articles under consideration are not among the items that are
mentioned in EN 84.13 as pump parts. Therefore, we do not believe that
the subject articles should be considered parts of the concrete pumps.
Moreover, headings 7304, 7306, and 7307, HTSUS, which are particular
headings for pipes, tubes and pipe fittings provide more specific
descriptions of the subject merchandise than heading 8413, HTSUS a
heading for liquid pumps which includes parts. Consequently, based on
the application of U.S. Additional Note 1(c), HTSUS, we conclude that
the headings 7304, 7306, and 7307, HTSUS for pipes, tubes and pipe
fittings should prevail over heading 8413, HTSUS, for pump parts.
Accordingly, we find that the straight length seamless pipes and
reducers are classified in heading 7304, HTSUS. We have been advised
that carbon steel predominates by weight over the other materials in the
straight length pipes under consideration. In accordance with Section XV
Note 7, the straight length seamless pipes and reducers are classified
in subheading 7304.39.00, HTSUS; which provides for tubes, pipes, and
hollow profiles, seamless, of iron (other than cast iron) or steel,
other of circular cross section, of iron or nonalloy steel, other.

In the case of the seamed or welded straight length pipes and the
reducers, we have been advised that carbon steel also predominates by
weight for these articles. Therefore under Section XV Note 7, they are
classified in subheading 7306.30.50, HTSUS, which provides for tubes,
pipes and hollow profiles, (for example, open seamed or welded, riveted
or similarly closed) of iron or steel, other welded of circular cross
section of iron or nonalloy steel, having a wall thickness of 1.65 mm or
more, other.

With respect to the bends and the flanges, Section XV Note 2(a), defines
"[parts of general use"]{.underline} as articles of heading 7307, 7312,
7315, 7317 or 7318, HTSUS, and similar articles of base metals. Section
XVI, Note 1(g), indicates that parts of general use, as defined in Note
2 to Section XV, of base metal (Section XV), or similar goods of
plastics (Chapter 39) are excluded from classification in Section XVI.
Chapter 84 is included in Section XVI. Therefore, the bends and flanges
are excluded from being classified in 8413, HTSUS. This supports a
finding that the bends are classified in heading 7307.99.50, HTSUS,
which provides for tube or pipe fittings (for example, couplings elbows,
sleeves), of iron or steel, other, other, other. The flanges produced by
a forging process are classified in subheading 7307.91.5070 as \[T\]ube
or pipe fittings (for example, couplings, elbows, sleeves), of iron or
steel: \[O\]ther: Flanges: \[N\]ot machined, not tooled and not
otherwise processed after forging: of alloy steel (except stainless
steel).

**HOLDING:**

NY J88733 is affirmed.

The straight length pipes reducers where the carbon steel predominates
by weight which are seamless are classified in subheading 7304.39.00,
HTSUS, which provides for: \[T\]ubes, pipes and hollow profiles,
seamless, of iron (other than cast iron) or steel: \[O\]ther.
Classification at the ten-digit statistical level depends upon the
diameter and wall thickness of the pipes. The general column one rate of
duty for these articles is free. Current information regarding
classification at the ten-digit level for straight length pipes is
available at the web site of the International Trade Commission at
www.usitc.gov.

The seamed or welded straight length pipe and the reducers where carbon
steel predominates by weight are classified in subheading 7306.30.50,
HTSUS, which provides for: \[O\]ther tubes, pipes and hollow profiles
(for example, open seamed or welded, riveted or similarly closed), of
iron or steel: \[O\]ther welded, of circular cross section, of iron or
nonalloy steel: \[H\]aving a wall thickness of 1.65 mm or more:
\[O\]ther.. The general column one rate of duty for these articles is
free.

The bends are classified in heading 7307.99.5060 Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) that provides for:
\[T\]ube or pipe fittings (for example, couplings elbows, sleeves), of
iron or steel: \[O\]ther: \[N\]ot machined, not tooled and not otherwise
processed after forging: \[O\]ther, of alloy steel (except stainless
steel). The general column one rate of duty for the bends is 4.3 percent
ad valorem.

The flanges if produced by a forging process are classified in heading
7307.91.5070, HTSUSA, as: \[T\]ube or pipe fittings (for example,
couplings, elbows, sleeves), of iron or steel: \[O\]ther: Flanges:
\[N\]ot machined, not tooled

and not otherwise processed after forging: of alloy steel (except
stainless steel). The general column one rate of duty for the flanges is
3.2 percent ad valorem.

Pursuant to the termination of the Section 201 steel safeguard measures,
as provided by Presidential Proclamation 7741, of December 4, 2003,
steel tubes, pipes, and fittings classified in the foregoing
subheadings, entered, or withdrawn from warehouse for consumption, on or
after 12:01 a.m., EST, December 5, 2003, is no longer subject to
additional ad valorem duties. *See* 68 Fed. Reg. 68483, 68485 (Dec. 8,
2003).

Sincerely,

Myles B. Harmon, Director

Commercial Rulings Division