CLA-2 CO:R:C:M 951469 AJS
District Director
U.S. Customs Service
P.O. Box 2450
San Francisco, CA 94126
RE: Protest number 2809-92-100372; titanium scrap fines; titanium
sponge; Subheading 8108.10.10; Section XV, note 6(a); waste and
scrap; Section XV, Additional U.S. Note 2; unwrought.
Dear District Director:
This is our decision in protest for further review number
2809-92-100372, dated February 20, 1992, filed against the tariff
classification of "titanium scrap fines" from the Soviet Union
within subheading 8108.10.50, Harmonized Tariff Schedule of the
United States (HTSUS).
FACTS:
The subject merchandise is described as titanium scrap fines
(TSFs). They consist of sized fragments of titanium sponge which
have been aggregated into briquettes. Customs laboratory
analysis indicates that the TSFs are pelletized bits of titanium
sponge.
ISSUE:
Whether the subject TSFs are properly classifiable within
subheading 8108.10.10, HTSUS, which provides for "waste and
scrap" titanium; or within subheading 8108.10.50, HTSUS, which
provides for "other" unwrought titanium.
LAW AND ANALYSIS:
Subheading 8108.10.10, HTSUS, provides for "waste and scrap"
titanium. This term encompasses metal waste and scrap from the
manufacture or mechanical working of metals, and
metal goods definitely not usable as such because of breakage,
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cutting-up, wear or other reasons. Section XV, note 6(a).
Counsel for the protestant claims that the subject TSFs are
"waste and scrap" of titanium sponge. This assertion is based on
the claims that the TSFs do not possess the same ASTM (American
Society for Testing Materials) chemical composition required for
titanium sponge, are not sold at the same price, and are not used
for the same purpose.
Counsel states that titanium sponge is used in the
aerospace industry to make sheet, plate and tubes. The subject
TSFs are used to produce nickel and cobalt alloy based pipes,
tubes and sheets for the aerospace industry. In addition, the
TSFs can be used in the manufacture of certain titanium products
if they are melted with pure titanium in proportionally small
amounts. These uses are of a similar nature and do not establish
that the TSFs are "not usable" as titanium.
Counsel claims that the subject TSFs possess only a minimum
content of 99 % titanium, while the ASTM requires a minimum
content level of 99.3 % titanium for titanium sponge. We do not
find this small difference in percentage controlling for
classification purposes. Customs laboratory analysis indicates
that the TSFs possess the characteristics of titanium sponge.
Furthermore, the above percentage differential simply requires
that the TSFs be used for a different purpose than that of ASTM
titanium sponge, it does not require that they be classifiable as
"waste or scrap".
Counsel also claims that the price difference between the
TSFs and titanium sponge merit classification of the TSFs as
"waste and scrap." At the time of this transaction, titanium
sponge was sold for approximately $12.00 per kilo and the TSFs
were purchased for $9.00 per kilo. Information obtained by
Customs indicates that at this time scrap titanium was being sold
at between $1.10 to $4.41 per kilo. Therefore, this price
differential would appear to merely reflect the quality
difference in the TSFs and the ASTM sponge, and not establish
that the TSFs are "waste or scrap" titanium.
Subheading 8108.10.50, HTSUS, provides for "other" unwrought
titanium. The term "unwrought" refers to metal, whether or not
refined, in the form of briquettes, sponges and similar
manufactured primary forms. Section XV, Additional U.S. Note 2.
The subject TSFs satisfy this description. They are pieces of
titanium sponge which have been aggregated into briquettes for
further use. In addition, counsel also acknowledges that
titanium sponge is unwrought. Accordingly, the TSFs satisfy the
terms of this subheading and are properly classifiable therein.
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HOLDING:
The subject "titanium scrap fines" are classifiable within
subheading 8108.10.50, HTSUS, which provides for "other"
unwrought titanium. You should deny the protest in full. A copy
of this decision should be attached to the Customs Form 19 and
mailed to the protestant as part of the notice of action on the
protest.
Sincerely,
John Durant, Director
Commercial Rulings Division