CLA-2 OT:RR:CTF:TCM H173037 AMM
Port Director
U.S. Customs and Border Protection
Service Port - Champlain
237 West Service Road
Champlain, NY 12919
RE: Tariff classification of certain titanium armor plates; Protest Number
0712-11-100002
Dear Port Director:
This letter is in reply to protest and application for further review (AFR), number 0712-11-100002, dated January 5, 2011, filed on behalf of Titanium Industries, Inc., (Protestant), against U.S. Customs and Border Protection’s (CBP) reclassification and subsequent liquidation of one entry at the Service Port of Champlain (the Port) of certain titanium armor plates, under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The products at issue in this protest are described as the following unassembled goods imported in pieces: “Plate Roof Cover AFT” (Part No. HLX0009 Rev F), “Plate Roof Cover FWD” (Part No. HLX0010 Rev F), “Panel, Armor Rear Seat, Floor” (Part No. HLX0011 Rev D), “Panel, Armor, Skirt” (Part No. HLX0015-01 Rev B), “Panel, Armor, Skirt” (Part No. HLX0015-03 Rev B), and “Titanium GP Plate GR 2 ASTM B265 .250”x12”x12””. Protestant has provided manufacturing drawings for five of the six products at issue. The first five listed products are designed as part of a customized, light weight armor kit. The kit is made up of standard, bolt-on titanium plates designed to be attached to multiple High Mobility Multipurpose Wheeled Vehicle (HMMWV, better known as the “Humvee”) models, and certain unidentified “other military vehicles.” The
components can be easily installed, removed and folded, allowing for easy transport and rapid response to changing environments. The final product, the Titanium GP Plate GR 2 ASTM B265 .250”x12”x12”, is a “test coupon” to be used by the purchaser of the armor kit to verify the material properties of the titanium metal. It is not a part of the armor kit.
The products themselves are flat plates cut to various shapes and sizes, to dimensions provided by Protestant’s customers. According to Protestant’s submission, dated August 19, 2011, the products are made from a titanium alloy, which consists of 4% aluminum, 6% vanadium, and 90% titanium.
The subject merchandise was entered on October 29, 2009, under heading 8710, HTSUS, which provides in pertinent part for: “[O]ther armored fighting vehicles, … and parts of such vehicles”. At the time of liquidation on July 23, 2010, the Port classified the merchandise under heading 8108, HTSUS, specifically under subheading 8108.90.60.45, HTSUS (annotated), which provides for: “Titanium and articles thereof, including waste and scrap: Other: Other: Plates, sheets, strips and foil”. The instant protest and AFR was filed on January 5, 2011.
ISSUE:
What is the correct classification under the HTSUS of the merchandise at issue?
LAW AND ANALYSIS:
Initially we note that the matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification and the rate and amount of duties chargeable. The protest was timely filed on January 5, 2011, within 180 days of liquidation, pursuant to 19 U.S.C. §1514(c)(3).
Further review of Protest 0712-11-100001 was properly accorded to protestant pursuant to 19 C.F.R. §174.24. In accordance with Section 174.24(a), the protestant alleges the decision against which the protest was filed is alleged to be inconsistent with matters previously ruled upon by the Commissioner of Customs or his designee with respect to the same or substantially similar merchandise, specifically New York Ruling Letter (NY) N023584, dated March 4, 2008.
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 GRI may then be applied.
The 2012 HTSUS provisions at issue are:
8108 Titanium and articles thereof, including waste and scrap:
8108.90 Other:
8108.90.30 Articles of titanium
8108.90.60 Other
8108.90.60.45 Plates, sheets, strips and foil
8708 Parts and accessories of the motor vehicles of headings 8701 to 8705:
Other parts and accessories of bodies (including cabs):
8709.29 Other:
8708.29.50 Other
8710.00.00 Tanks and other armored fighting vehicles, motorized, whether or not fitted with weapons, and parts of such vehicles
Note 1 to Section XV (which covers Chapter 81), HTSUS, states, in pertinent part: “This section does not cover: … (g) … other articles of section XVII (vehicles, ships and boats, aircraft); …”.
Note 3 to Section XV, HTSUS, states, in pertinent part: “Throughout the schedule, the expression “base metals” means: … aluminum … titanium … vanadium …”.
Note 5 to Section XV, HTSUS, states, in pertinent part:
Classification of alloys …:
(a) An alloy of base metals is to be classified as an alloy of the metal which predominates by weight over each of the other metals.
(b) An alloy composed of base metals of this section and of elements not falling within this section is to be treated as an alloy of base metals of this section if the total weight of such metals equals or exceeds the total weight of the other elements present.
* * *
Note 1 to Chapter 74, HTSUS, states, in pertinent part,
In this chapter the following expressions have the meanings hereby assigned to them:
* * *
(g) Plates, 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 or products of other headings.
* * *
Subheading Note 1 to Chapter 81 states, in pertinent part: “Note 1 to chapter 74, defining … ‘plates, sheets, strip and foil’ applies, mutatis mutandis, to this chapter.”
The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. It is CBP’s practice to consult, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89–80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN to heading 81.08 states, in pertinent part:
This heading covers titanium in all forms: in particular, sponge, ingots, powder, anodes, bars and rods, sheets and plates, waste and scrap, and products other than those articles covered by other Chapters of the Nomenclature (generally Section XVI or XVII), such as helicopter rotors, propeller blades, pumps or valves.
* * *
The EN to heading 87.10, states, in pertinent part:
This heading covers tanks and other armoured fighting “Vehicles, motorised, whether or not fitted with weapons, and” parts of such vehicles.
* * *
Armoured cars are faster and lighter than tanks and cannot carry such heavy armour or mount such large guns. Sometimes they are only partly armoured. They are mainly used for police duties, reconnaissance or for transport in fighting areas. Some armoured cars are track laying, but the majority are of the road wheel type. They may be amphibious (e.g., track laying armoured landing vehicles).
* * *
The protestant entered the instant merchandise under heading 8108, HTSUS, specifically under subheading 8108.90.30, HTSUS, which provides in pertinent part for: “Titanium and articles thereof …: Other: Articles of titanium”. The Port liquidated the instant merchandise under subheading 8108.90.60.45, HTSUS (annotated), which provides in pertinent part for” Titanium and articles thereof …: Other: Other: Plates, sheets, strips and foil”. In their protest, the protestant argues that the instant merchandise is properly classified under heading 8710, HTSUS, specifically under subheading 8710.00.00, HTSUS, which provides in pertinent part for: “[O]ther armored fighting vehicles … and parts of such vehicles”.
Note 1(g) to Section XV, HTSUS, excludes articles of Section XVII, HTSUS, from classification in any chapter of Section XV, HTSUS. See also EN 81.08. Therefore, it is proper to first consider whether the instant merchandise is classified under heading 8710, HTSUS, as parts of armored fighting vehicles.
The phrase “armored fighting vehicles” is not defined in the HTSUS. However, CBP has previously had occasion to clarify this term. “[F]or purposes of heading 8710 the term armored fighting vehicles encompasses motorized vehicles that are armored and which transport both persons and goods in fighting areas.” See Headquarters Ruling Letter (HQ) 957890, dated May 7, 1996; HQ 958995, dated May 6, 1996. See also NY N036859, dated September 9, 2008 (classifying a decommissioned Swedish Armed Services Hagglunds BV206 under heading 8710, HTSUS); and NY N018157, dated October 26, 2007 (classifying a British Mark 1 Ferret Scout armored personnel carrier under heading 8710, HTSUS). Therefore, an “armored fighting vehicle” of heading 8710, HTSUS, must be 1) a vehicle, 2) that is armored, and 3) that is used in fighting areas for the transport of goods or persons.
An armored vehicle is not necessarily a fighting vehicle. In NY 867574, dated October 17, 1991, CBP considered the classification of four armored vehicles. Three of these (namely, the Guardsman, the Buffalo Heavy Duty Coin and Bullion Carrier, and the Mobile Bank), could not be classified under heading 8710, HTSUS. The Guardsman and Buffalo were armored vehicles used to transport valuable commodities, such as money. The Mobile Bank was an armored vehicle which functioned as a mobile ATM machine. The fourth vehicle considered in NY 867574, the Tactical Unit, was an armored vehicle that could carry up to eight passengers, and was designed for use as a reconnaissance security and escort vehicle, or as a troop carrier. This vehicle was classified under heading 8710, HTSUS, as an “armored fighting vehicle.”
The protestant’s submission of January 4, 2011, states that the instant products are “adapted for multiple Humvee models as well as for other military vehicles”, and “are to be used with specific military vehicles.” Protestant claims confidentiality regarding the identity of the specific military vehicles that the instant products are to be used with, and will not provided the requested information. Our research has found that the Humvee is manufactured in the United States by AM General, LLC. According to the company’s website, AM General, LLC manufactures at least twenty-two (22) different Humvee models. The Humvee is described as a “family of versatile, technologically advanced, cross-country vehicles capable of performing both combat and combat-support roles.” Certain models, such as the M1167, are manufactured with armor already included. Other models, such as the M1097A2, do not appear to include armor at all. Pictures of both models are included below:
M1167 HMMWV
(pictured with TOW missile launcher)
M1097A2 HMMWV
There are many types of Humvees. All of them are military vehicles, designed to transport goods or persons in fighting areas. Certain Humvees, like the M1167, are armored, and would thus be properly classified under heading 8710, HTSUS (assuming for argument’s sake that they were imported to the United States, which they are not). This is consistent with rulings HQ 957890, HQ 958995, NY N036859, NY N018157, and NY N023584. However, other Humvees, like the M1097A2, are not armored. These vehicles would not be properly classified under heading 8710, HTSUS, because they are not armored fighting vehicles.
It may be the case that the instant products are only used as parts of vehicles which meet the definition of “armored fighting vehicles.” However, because the protestant has refused to provide CBP with the appropriate information, it is impossible to make this determination. Because CBP cannot establish whether the vehicles for which the parts were designed can be considered “armored fighting vehicles”, the instant merchandise cannot be classified as parts of armored fighting vehicles under heading 8710, HTSUS, and Note 1(g) to Section XV, HTSUS, does not operate to exclude the instant merchandise from classification under heading 8108, HTSUS.
Heading 8708, HTSUS, provides for “Parts and accessories of the motor vehicles of headings 8701 to 8705”. The protestant alleges that the instant merchandise is to be used on Humvees and other military vehicles. Thus, the question then becomes whether these vehicles are classifiable under headings 8701 to 8705, HTSUS. Regardless of whether they are armored, Humvees are military motor vehicles, designed to transport goods or persons in fighting areas. Motor vehicles are provided for in heading 8703, HTSUS (which provides in pertinent part for “[O]ther motor vehicles principally designed for the transport of persons ...”), and in heading 8704, HTSUS (which provides for “Motor vehicles for the transport of goods”). Therefore, it is appropriate to consider whether the instant merchandise could be considered “parts” or “accessories” of one of the motor vehicles of headings 8701 to 8705.
The courts have considered the nature of “parts” under the HTSUS and two distinct though not inconsistent tests have resulted. See Bauerhin Technologies Limited Partnership, & John V. Carr & Son, Inc. v. United States, 110 F.3d 774, 779. The first, articulated in United States v. Willoughby Camera Stores, 21 C.C.P.A. 322 (1933) requires a determination of whether the imported item is “an integral, constituent, or component part, without which the article to which it is to be joined, could not function as such article.” Bauerhin, 110 F.3d at 778 (quoting Willoughby Camera, 21 C.C.P.A. 322, 324). The second, set forth in United States v. Pompeo, 43 C.C.P.A. 9 (1955), states that an imported item “dedicated solely for use” with another article is a part of that article provided that, “when applied to that use,” the article will not function without it. Pompeo, 43 C.C.P.A. 9, 14. Under either line of cases, an imported item is not a part if it is “a separate and distinct commercial entity.” ABB, Inc. v. United States, 28 Ct. Int’l Trade 1444, 1452-53 (2004); Bauerhin, 100 F. 3d at 1452-32.
The term “accessory” is not defined in the HTSUS or in the ENs. However, this office has stated that the term “accessory” is generally understood to mean an article which is not necessary to enable the goods with which they are intended to function. They are of secondary importance, but must, however, contribute to the effectiveness of the principal article (e.g., facilitate the use or handling of the particular article, widen the range of its uses, or improve its operation). See HQ 958710, dated April 8, 1996; HQ 950166, dated November 8, 1991. We also employ the common and commercial meanings of the term “accessory”, as the courts did in Rollerblade v. United States, wherein the Court of International Trade derived from various dictionaries that an accessory must relate directly to the thing accessorized. See Rollerblade v. United States, 116 F.Supp. 2d 1247 (Ct. Int’l. Trade 2000), aff’d, 282 F.3d 1349 (Fed. Cir. 2002) (holding that inline roller skating protective gear is not an accessory because the protective gear does not directly act on or contact the roller skates in any way).
The merchandise identified as “Plate Roof Cover AFT” (Part No. HLX0009 Rev F), “Plate Roof Cover FWD” (Part No. HLX0010 Rev F), “Panel, Armor Rear Seat, Floor” (Part No. HLX0011 Rev D), “Panel, Armor, Skirt” (Part No. HLX0015-01 Rev B), and “Panel, Armor, Skirt” (Part No. HLX0015-03 Rev B) are each a part of a customized light weight armor kit, designed to be bolted to the body of a Humvee, or other military vehicle. These five titanium armor plates are not necessary to the overall function of a motor vehicle, but they contribute to that vehicle’s effectiveness in protecting the passengers and goods from harm. Hence, they are not parts, but accessories to a Humvee or other military transport vehicle of heading 8701 to 8705, classifiable as such in heading 8708, HTSUS, specifically under subheading 8708.29.50, HTSUS, which provides in pertinent part for “[A]ccessories of the motor vehicles of headings 8701 to 8705: Other parts and accessories of bodies (including cabs): Other: Other”. See NY R02041, dated June 2, 2005 (classifying a metal platform used for turrets on military vehicles under subheading 8708.29.50, HTSUS). Furthermore, Note 1(g) to Section XV, HTSUS, operates to exclude these five items from classification under heading 8108, HTSUS.
The final product under consideration is the Titanium GP Plate GR 2 ASTM B265 .250”x12”x12”, or “test coupon.” This plate is not used on a vehicle and therefore is not a part or accessory thereof. The protestant states, in their submission dated August 19, 2011, that the instant products are made of an alloy composed of 6% aluminum, 4% vanadium, and 90% titanium. Therefore, because the titanium predominates by weight over the other base metals, the “test coupon” is properly classified under heading 8108, HTSUS. See Note 3 and Note 5(a) to Section XV, HTSUS.
At GRI 6, the issue then becomes whether the merchandise is an other plate or an article of titanium. CBP has previously had occasion to clarify the term “articles of titanium” as it appears in subheading 8108.90.30, HTSUS. In HQ 967354, dated January 26, 2005, CBP considered whether certain rectangular titanium plates were classified in subheadings 8108.90.30 or 8108.90.60, HTSUS. CBP found that those titanium plates met the definition of “plates” contained in Subheading Note 1 to Chapter 81, HTSUS, and Note 1(g) to Chapter 74, HTSUS, and went on to discuss whether they could be considered “articles of titanium.” While the term “article” is not defined in the HTSUS, the Court of Customs and Patent Appeals (the predecessor to the Court of Appeals for the Federal Circuit) discussed the meaning of this phrase. “In some instances [the word ‘article’] 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.” United States v. A. Johnson & Co., 588 F.2d 297, 300 (C.C.P.A. 1978). In HQ 967354, CBP took the position that the word “articles,” as it appeared in subheading 8108.90.30, HTSUS, takes on this narrower meaning. Because the annotated HTSUS provides for “plates, sheet, strip, and foil” at the 10-digit level within 8108.90.60, HTSUS (specifically, subheading 8108.90.60.45, HTSUSA), CBP reasoned that items which are no more than plates or sheets could not be classified as “articles of titanium.”
The “test coupon” is a rough cut 12 inch square plate of titanium alloy with a thickness of one-quarter inch, and no bolt-holes. It is the very definition of a “plate” of titanium, and has not progressed beyond a mere plate. See Subheading Note 1 to Chapter 81, HTSUS, and Note 1(g) to Chapter 74, HTSUS. Therefore, the “test coupon” is properly classified under heading 8108, specifically under subheading 8108.90.60.45, HTSUS (annotated), as “Titanium and articles thereof …: Other: Other: Plates, sheets, strips and foil”. See HQ 967354.
HOLDING:
By application of GRI 1, five of the instant titanium armor plates, specifically the “Plate Roof Cover AFT” (Part No. HLX0009 Rev F), “Plate Roof Cover FWD” (Part No. HLX0010 Rev F), “Panel, Armor Rear Seat, Floor” (Part No. HLX0011 Rev D), “Panel, Armor, Skirt” (Part No. HLX0015-01 Rev B), and “Panel, Armor, Skirt” (Part No. HLX0015-03 Rev B), are classified in heading 8708, HTSUS, specifically under subheading 8708.29.50, HTSUS, which provides for: “Parts and accessories of the motor vehicles of headings 8701 to 8705: Other parts and accessories of bodies (including cabs): Other: Other”. The column one, general rate of duty is 2.5%.
By application of GRI 1 and GRI 6, the “Titanium GP Plate GR 2 ASTM B265 .250”x12”x12”” product is classified in heading 8108, HTSUS, specifically under subheading 8108.90.60.45, HTSUS (annotated), which provides for: “Titanium and articles thereof, including waste and scrap: Other: Other: Plates, sheets, strips and foil”. The column one, general rate of duty is 15%.
You are instructed to DENY the protest, except to the extent reclassification of the merchandise as indicated results in a partial allowance. A copy of this ruling should be attached to the CBP Form 19 and provided to the protestant as part of the notice of action on the protest.
Sixty days from the date of the decision Regulations and Rulings of the Office of International Trade 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