CLA-2 RR:CR:GC 967354 DSS
TARIFF NO: 8108.90.6045
Port Director
U.S. Customs and Border Protection
1100 Raymond Blvd., Suite 402
Newark, NJ 07102
Attn: Protest and Control Section
RE: Further Review of Protest No. 4601-04-101411; Titanium tubesheets from Japan
Dear Port Director:
This is our decision on Protest No. 4601-04-101411 filed by Kuehne and Nagel on behalf of Alstom Power, Inc. (protestant), against your decision regarding the classification of certain titanium tubesheets under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).
FACTS:
The articles under protest consist of plates of titanium described by the protestant on the invoice as titanium tubesheets. According to the invoice and packing lists for the merchandise, they are rectangular titanium plates in accordance with American Society of Testing Materials (ASTM) standard B265GR2. The dimensions of the plates are 28.6 mm by 2,896 mm by 3,251 mm.
At liquidation, you classified the entry under protest under subheading 8108.90.6045, HTSUSA, as “Titanium and articles thereof, including waste and scrap: Other: Other: Plates, sheets, strips and foil.” The protestant advocates classification of the titanium plates under subheading 8108.90.3060, HTSUSA, essentially as other articles of titanium.
The plates were entered on May 9, 2003. The entry was liquidated on March 19, 2004. The protest was filed on June 17, 2004.
ISSUE:
Whether the instant titanium tubesheets are considered “articles of titanium” for purposes of subheading 8108.90.30, HTSUS.
LAW AND ANALYSIS:
Initially we note that the protest was timely filed (i.e., within 90 days after but not before the notice of liquidation; see 19 U.S.C. 1514 (c)(3)(A)) and the matter is protestable (see 19 U.S.C. 1514 (a)(2) and (5)).
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 may then be applied.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs 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 Harmonized System. The Bureau of Customs and Border Protection (CBP) believes the ENs should always be consulted. See T.D. 89 80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The HTSUSA provisions (2003) under consideration are as follows:
Titanium and articles thereof, including waste and scrap:
Other:
Articles of titanium:
Other.
Other:
8108.90.6045 Plates, sheets, strips and foil.
Both the port and the protestant agree that the instant titanium tubesheets fall under heading 8108, HTSUS. The issue is under which subheading they fall. According to GRI 6, classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to GRIs 1 through 5.
Protestant argues that the instant titanium tubesheets are articles of titanium and should be classified under subheading 8108.90.30, HTSUS. You classified the tubesheets under subheading 8108.90.60, HTSUS, which provides for, “Titanium and articles thereof including waste and scrap: Other: Other.”
Chapter 81, Subheading Note 1, HTSUS, states in relevant part, that the definitions of “plates, sheets, strip and foil” found in Chapter 74, Note 1 apply mutadis mutandis to Chapter 81. Chapter 74, Note 1 states in relevant part:
[P]lates, sheets, strip and foil
Flat-surfaced products (other than the unwrought products of heading 7403), coiled or not, of solid rectangular (other than square) cross section with or without rounded corners (including “modified rectangles” of which two opposite sides are convex arcs, the other two sides being straight, of equal length and parallel) of a uniform thickness, which are:
of rectangular (including square) shape with a thickness not exceeding one-tenth of the width,
of a shape other than rectangular or square, of any size, provided that they do not assume the character of articles of products of other headings. . . .
Based on the information in the file, the instant tubesheets meet that definition for plates or sheets of titanium.
CBP has consistently classified titanium plate and sheet and other wrought primary manufactured forms within its eo nominee subheading 8108.90.6045, HTSUSA, which provides for other, other titanium. Conversely, other goods of titanium, such as castings, have been classified under subheading 8108.90.30, HTSUS. See HQ 087589, dated October 16, 1990.
In fact, if CBP classified otherwise, then there would be no articles falling in subheading 8108.90.60, HTSUS. Clearly, that is not what Congress intended.
In drafting the national rate line and statistical levels under subheading 8108.90 for the HTSUS, Congress intended to mirror the distinction in the Tariff Schedules of the United States Annotated (TSUSA) between tariff item 629.2000, TSUSA, which provided for wrought titanium, and tariff item 658.0000, which provided for other articles of titanium. Wrought titanium products of item 629.2000 included plates and sheets and other semi-manufactures; these articles are now provided for under subheading 8108.90.60, HTSUS. In the TSUSA, the term article had different meanings, depending on the context. As was stated by the Court of Customs and Patent Appeals [now the Court of Appeals for the Federal Circuit] in United States v. A. Johnson & Co, 66 C.C.P.A. 35, 39; C.A.D. 1218, 588 F.2d 297, 300 (1978): “[The term ‘article’ in the TSUSA] in some instances is used as a synonym for ‘thing’ and embraces any importation, and in other contexts it takes on a narrower meaning, . . . namely, a manufactured thing or product.”
The term “articles of titanium” in subheading 8108.90.30, HTSUS, takes on a narrower meaning. This is evidenced in several ways. The tariff conversion study of the HTSUS, noted that these two items – 629.2000 and 658.0000 - had covered different products and were assessed different tariff rates. Conversion of the Tariff Schedules of the United States Annotated into the Nomenclature of the Harmonized System, USITC Publication 1400, June 1983. Those distinctions are reflected in the creation of two subheadings at the eight-digit level with differing tariff rates, and is further reflected in the 10-digit statistical levels under subheading 8108.90, HTSUS.
The House Conference Report No. 100-576, page 549-550, directs that: "...on a case-by-case basis prior decisions should be considered instructive in interpreting the HTS, particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTS." CBP finds no reason to change the classification of titanium plate or sheet as previously addressed under the TSUSA.
In addition, the General Notes of Section XV state, in relevant part, “[e]ach of the Chapters 72 to 76 and 78 to 81 covers particular unwrought base metals and products of those metals such as bars, rods, wires, or sheets, as well as articles thereof (emphasis added).” This note further indicates a distinction between semi-manufactured products, such as plates and sheets, and other articles of base metal for classification purposes.
In light of the intent of Congress in drafting subheadings 8108.90.30, and 8108.90.60, HTSUS, the instant rectangular tubesheets are classified under subheading 8108.90.6045, HTSUSA.
HOLDING:
The instant titanium tubesheets are classified in subheading 8108.90.6045, HTSUSA, which provides for “Titanium and articles thereof, including waste and scrap: Other: Other: Plates, sheets, strips and foil.” The 2003 column one, general rate of duty is 15 percent ad valorem. Duty rates are provided for convenience only and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
You should DENY the protest. In accordance with the Protest/Petition Processing Handbook (CIS HB, June 2002, pp. 18 and 21), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the
date of the decision the Office of 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 Rulings Division