CLA-2 CO:R:C:M 087593 CMS
7411.10.10
Mr. Richard C. King, Esq.
Fitch, King & Caffentzis
116 John Street
New York, NY 10038
RE: Copper Tubes; Pipes; Hollow Profiles; Rifled; Ridged;
Grooved; Threaded; Finned; Gilled; Enhanced; Heat Transfer
Dear Mr. King:
Your request dated June 29, 1990, on behalf of Marubeni
America Corporation, 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 Thermofin
seamless copper "tube" of refined copper. The product 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. The outer diameter of the tube is approximately
3/8". The tube is used in heat exchange products in which
refrigerant evaporates and condenses. Particular goods in which
the tube is used are room and unitary air conditioners, water
chillers 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.
-2-
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Annotated (HTSUSA) superseded the TSUS effective January 1,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 Thermofin tube product brochure, which at p. 5 provides
measurements for different wall thicknesses (e.g., "Mean wall
-3-
thickness" and "Bottom wall thickness"). The difference is
apparently accounted for by the ridges and troughs, which are
described in the product brochure as "fins" or "grooves".
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".
The importer argues that the product cannot be classified
as "profiles" because it is known in the trade as "tube" and not
-4-
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
the context of describing how some finned or gilled tube is still
classified as tube. The General Explanatory Notes to Chapter 73,
-5-
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
brochure, which describes the grooves not as threads, but as
-6-
"fins". 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 Thermofin product brochure, however,
describes the grooves not as V-threads or any other type of
thread, but as "fins". The brochure comes complete with "fin
specifications". The brochure references the United States
Patent for the product, which describes the product not as
threaded tube, but as "heat transfer tube with grooved inner
surface".
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
Thermofin grooves are helical, and not circumferential or
parallel. Assuming, arguendo, that the Thermofin 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 "fins" 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
power. It is argued that the grooves have a rifling effect and
-7-
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 Thermofin 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 087406 (April 1,
1991)
HOLDING:
The Thermofin tubular product under consideration is
classified as profiles of refined copper, in 7407.10.10, HTSUSA.
Sincerely,
John Durant, Director
Commercial Rulings Division