CLA-2:OT:RR:CTF:TCM H039042 JRB
Tariff No.: 7604.29.10; 7608.20.00
Port Director
Port of Philadelphia
2nd & Chestnut Streets
U.S. Customs House, Room 102
Philadelphia, Pennsylvania 19106
RE: Application for further review of protest number 1101-08-100262; Classification of Aluminum Alloy Products
Dear Port Director:
This letter is our decision on protest and application for further review number 1101-08-100262, filed by Weldon Industries, Inc. (protestant). The protest is against U.S. Customs and Border Protection’s (CBP) classification of aluminum alloy products under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The products that are the subject of this protest entered the United States starting on March 1, 2007 through May 8, 2007 under heading 7604, HTSUS, which provides for aluminum profiles. The entries were liquidated on February 15, 2008 and May 30, 2008 after the Port of Philadelphia issued Notice of Action forms to the importer stating that the port was going to liquidate all of the merchandise in the entries in heading 7608, HTSUS, as aluminum tubes and pipes.
Included with the protest were seven samples of aluminum alloy products in various shapes and sizes that the protestant asserts are representative of the merchandise imported under these entries. Descriptions of these samples are
below:
Sample ZL1297, which is asserted to be similar to products ZL1296 and ZL1298, is approximately 12.25 inches in length, 1 inch in height, and 1 inch wide. It has three solid sides and one side that is open with a slight overhang making the shape of the product somewhat like a C.
Sample 010101-B is approximately 12.25 inches in length and is in the shape of a square. All four sides are approximately 2 inches wide. The four sides are less than 1/8 of an inch in thickness. The sides surround a hollow interior running the length of the product. Along the interior of all four sides there are two small lines that run the length of the product.
Sample 010103, which is asserted to be similar to products 010395 and 010397, is approximately 12.25 inches in length and is in the shape of a square. All four sides are approximately 2 inches wide. The four sides are approximately 1/8 of an inch in thickness. The sides surround a hollow interior. Along the interior of all four sides there are two small lines that run the length of the product.
Sample 010097 is approximately 12 and 1/8 inches in length and is in the shape of a square. All four sides are approximately half an inch wide. The four sides are less than 1/8 of an inch thick. The sides surround a hollow interior. Along the interior of all four sides there are two small lines that run the length of the product.
Sample 010098 is approximately 12 inches in length and is in the shape of a square. All four sides are approximately ¾ of an inch wide. The four sides are less than 1/8 of an inch thick. The sides open up to a hollow interior. Along the interior of all four sides there are two small lines that run the length of the product.
Sample 010244 is approximately 2 and 1/8 inches in length and is in the shape of a square. All four sides are approximately half an inch wide. The four sides are less than 1/8 of an in thick. The sides surround a hollow interior. Along the interior of one side there is a small line that runs the length of the product.
Sample 050372, which is asserted to be a sample that the protestant submitted in response to your notice of action, is approximately 2.5 inches in length and is in the shape of a rectangle. Two sides are approximately 4 inches wide and two sides are two inches wide. All four sides are approximately 1/8 of an inch thick. The sides surround a hollow interior. There is no small line on the interior of any of the sides.
ISSUE:
Whether the items described above are classified in heading 7604, HTSUS, as aluminum bars, rods or profiles, or in heading 7608, HTSUS, as aluminum tubes or pipes?
LAW AND ANALYSIS:
Initially, we note that this matter is protestable as a classification decision pursuant to 19 U.S.C. §1514(a)(2). The protest was timely filed on July 17, 2008, within 180 days of the liquidation of the first entry giving rise to the protest. See Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, §2103(2)(B)(ii),(iii) (codified as amended at 19 U.S.C. §1514(c)(3) (2006))). In addition further review of Protest 1101-08-100262 was properly accorded because the port’s decision is alleged to be inconsistent with a ruling on the same or substantially similar merchandise. See 19 C.F.R. §174.24(a).
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 2 through 6 may then be applied in order.
The 2007 HTSUS provisions under consideration are:
7604 Aluminum bars, rods and profiles:
Of aluminum alloys:
7604.21.00 Hollow profiles…
7604.29 Other:
7604.29.10 Other profiles…
7608 Aluminum tubes and pipes:
7608.20.00 Of aluminum alloys…
In addition Chapter 76 Note 1, HTSUS, in relevant part provides:
1. In this chapter the following expressions have the meanings hereby assigned to them:
* * *
(b) 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 expression also covers cast or sintered products, of the same forms, which have been subsequently worked after production (otherwise than by simple trimming or descaling), provided that they have not thereby assumed the character of articles or products of other headings.
* * *
(e) 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, ovals, rectangles (including squares), equilateral triangles or regular convex polygons, and which have a uniform wall thickness. Products with a rectangular (including square), equilateral triangular or regular convex polygonal cross section, which may have corners rounded along their whole length, are also to be considered as tubes and pipes provided the inner and outer cross sections are concentric and have the same form and orientation. Tubes and pipes of the foregoing cross sections may be polished, coated, bent, threaded, drilled, waisted, expanded, cone-shaped or fitted with flanges, collars or rings.
The first heading that must be considered in the classification analysis for these products is heading 7608, HTSUS, which provides for aluminum tubes and pipes because of the exclusion language provided in Chapter 76 Note 1(b), HTSUS. Heading 7608, HTSUS, provides the classification for aluminum tubes and pipes. The phrase “tubes and pipes” is defined in the HTSUS, at Chapter 76 Note 1(e), and is provided above.
Applying that definition to the current samples, all of the samples, except ZL1297, have the same general physical characteristics for purposes of classification. Samples 010101-B, 010103, 010097, 010098, 010244, and 050372 are all in the shape of a square or rectangle with a single interior void. They are all manufactured using the extrusion process. The “extrusion process begins with billet, the aluminum material from which profiles are extruded. The billet must be softened by heat prior to extrusion. The heated billet is placed into the extrusion press, a powerful hydraulic device wherein a ram pushes a dummy block that forces the softened metal through a precision opening, known as a die, to produce the desired shape.” In this case these products are all in the shape of a hollow square or rectangle. In addition all of these products have a uniform cross section along their entire length. These samples also have uniform wall thicknesses. Therefore samples 010101-B, 010103, 010097, 010098, 010244, and 050372 are all classifiable in heading 7608, HTSUS, as an aluminum tube or pipe.
Finally, sample ZL1297 cannot be classified as a tube or pipe in heading 7608, HTSUS, because this product does not have a completely enclosed void. Therefore, the analysis must continue for this product.
Sample ZL1297 like the samples above, is produced through the extrusion process. ZL1297, as noted above, does not have an enclosed void therefore it does not meet the definition of a tube or pipe. The sample also does not meet the definition of a bar, rod, wire, plate, sheet, strip, or foil. Finally, the sample has a uniform cross section along its entire length. Therefore, the sample meets the definition of a profile, which means that it is classifiable in heading 7604, HTSUS, as an aluminum profile.
At the subheading level the first subheading to consider for classification of sample ZL1297 is subheading 7604.21, HTSUS, which provides for hollow profiles. The phrase “hollow profiles” is not defined in the HTSUS or the Explanatory Notes. Thus, we will look to the common meaning of the term. When a tariff term is not defined by the HTSUS or the legislative history, its correct meaning is its common, or commercial, meaning. See Rocknel Fastener, Inc. v. United States, 267 F.3d 1354, 1356 (Fed. Cir. 2001). The court has stated on many occasions "[t]o ascertain the common meaning of a term, a court may consult 'dictionaries, scientific authorities, and other reliable information sources' and 'lexicographic and other materials.'" Id. (quoting C.J. Tower & Sons of Buffalo, Inc. v. United States, 673 F.2d 1268, 1271, 69 C.C.P.A. 128 (C.C.P.A. 1982); Simod Am. Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989)). The Aluminum Association through the Global Advisory Group defines the phrase “hollow profile” as a “profile in which the cross section completely encloses one or more voids”.
Applying this definition to sample ZL1297, this sample does not have an enclosed void as it only has three sides which do not completely surround an empty space. Therefore, this product cannot be classified in this subheading. The next subheading that can be considered is subheading 7604.29.10, HTSUS, which provides for “[o]ther profiles”. Since there is no other subheading to consider for profiles, sample ZL1297 must be classified in subheading 7604.29.10, HTSUS.
The protestant believes that all of the products that are the subject of this protest are properly classified in heading 7604, HTSUS. They argue that some of their products, such as ZL1297, are properly classified as profiles based on the HTSUS definition. We agree with their assertion that products similar to ZL1297 are properly classified in heading 7604, HTSUS as explained in our analysis above. In support of the protestant’s conclusion that the remaining products (samples 010101-B, 010103, 010097, 010098, 010244, and 050372) are classifiable in heading 7604, HTSUS, they contend that the products do not have a uniform wall thickness and cannot be classified in heading 7608, HTSUS, as a tube or pipe. In addition the protestant alleges that CBP has previously classified similar products in heading 7604, HTSUS.
More specifically, the protestant contends that the products do not have a uniform wall thickness because of the allowances for thickness in the manufacturing process and the small well bead on the interior of the products. With respect to the allowance in the manufacturing process, in administering the HTSUS, CBP has consistently followed the long-standing classification principle articulated by the Supreme Court in United States v. Citroen, 223 U.S. 407, 414-415, 32 S.Ct. 259, 56 L.Ed. 486 (1911), where the Court noted that:
[t]he rule is well established that "in order to produce uniformity in the imposition of duties, the dutiable classification of articles must be ascertained by an examination of the imported article itself, in the condition in which it is imported." (cites omitted).
Applying this principle to the products before us, we must look to the imported products in the condition in which they are imported and do not consider allowances in the manufacturing process and the wall thickness of other products that may have been produced. Samples 010101-B, 010103, 010097, 010098, 010244, and 050372 all have uniform wall thicknesses. Therefore, they are all classifiable in heading 7608, HTSUS, as an aluminum tube or pipe.
Next, with respect to the small welding beads that can be seen in the interior of the products, we look to the Explanatory Notes for heading 76.08. 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. CBP believes the EN’s should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). EN 76.08 provides:
Chapter Note 1(e) defines tubes and pipes.
The tubes and pipes of this heading may be manufactured by the following processes:
(a) by extruding a hollow cast or pierced round ingot;
(b) by longitudinally or spirally seam welding a die or roll-formed flat-rolled semi-product (strip or sheet);
(c) by impact extrusion;
(d) by casting.
Extruded or welded tubes may be subjected to a cold-drawing operation to obtain tubes with thinner walls, more accurate dimensions and a better finish.
EN 76.08 explains that a tube or pipe can be made by longitudinal seam welding, which implies that these products can have minor welding seams in the interior walls of its products. In addition, the note continues to provide that extruded or welded tubes can be subject to additional processing to obtain more accurate dimensions. The inclusion of this statement indicates that some very minimal variances are acceptable in products of this heading. Thus, classification of samples 010101-B, 010103, 010097, 010098, 010244, and 050372 are appropriate in heading 7608, HTSUS.
Finally, the protestant cites five previously issued ruling letters in support of its conclusion. These ruling letters are New York Ruling Letters (NY) R01214, dated January 5, 2005; NY M85353, dated August 15, 2006; NY J84931, dated May 30, 2003; NY N005892, dated February 12, 2007; and NY R01215, dated January 5, 2005. In all of these ruling letters the products were described as aluminum alloy products produced through the extrusion process with a uniform cross section and a completely enclosed void and were classified in heading 7604, HTSUS. However, the protestant does not provide us with enough information to indicate that these products are similar to the products before us. In particular the protestant does not indicate whether or not these products had a uniform wall thickness. After a further review of four of these rulings, we have determined that none of the products that were the subjects of these rulings met the definition of a tube or pipe because they did not have a uniform wall thickness. Thus, these rulings are not applicable to the current classification analysis.
In addition to the arguments provided, the protestant also asserted in phone conversations with this office that they knew of other competitors that import similar products and are entering those products under heading 7604, HTSUS. If the protestant has specific information about the potential improper classification of goods by other importers, those allegations should be submitted online at CBP’s e-allegations portal. See https://apps.cbp.gov/eallegations.
HOLDING:
By application of GRI 1 and Chapter 76, Note 1, sample ZL1297 is classified in heading 7604, HTSUS, more specifically it is classified in subheading 7604.29.10, HTSUS, which provides for “[a]luminum bars, rods and profiles: [o]f aluminum alloys: [o]ther: [o]ther profiles…”. The 2007 column one, general rate of duty is 5% ad valorem.
By application of GRI 1 and Chapter 76, Note 1, samples 010101-B, 010103, 010097, 010098, 010244, and 050372 are classified in heading 7608, HTSUS, more specifically they are classified in subheading 7608.20.00, HTSUS, which provides for “[a]luminum tubes and pipes: [o]f aluminum alloys…”. The 2007 column one, general rate of duty is 5.7% ad valorem.
You are instructed to DENY the protest, except to the extent reclassification of the merchandise as indicated above results in a net duty reduction and partial allowance. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.CBP.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division