**HQ** 961659

JANUARY 20,1999

**CLA-2 RR:CR:GC** 961659 JAS

**CATEGORY:** Classification

**TARIFF NO.:** 9817.00.90

Port Director of Customs

P.O. Box 1490

St. Albans, VT 05478

**RE**: PRD 0201-98-100009; Titanium Solids; Bulk Weldable Scrap
Titanium; Waste and Scrap, Subheading 8108.10.10; Billets, Unwrought
Titanium; Bars, Other Titanium, Subheading 8108.90.60; Remelt Scrap;
[Consolidated Cork v.U.S.]{.underline}; Heading 9817, Articles of Metal
to be Used in Remanufacture, 19 CFR 54.6; [HQ]{.underline} 960800

Dear Port Director:

This is our decision on Protest 0201-98-100009, filed against your
classification under the Harmonized Tariff Schedule of the United States
(HTSUS) of certain titanium solids. The entry was liquidated on December
5, 1997, and this protest timely filed on March 4, 1998. Counsel for the
protestant made supplemental submissions, dated August 25 and August 27,
1998, in which he presented additional materials.

**FACTS**:

The merchandise in issue is invoiced as 90/6/4 B/W scrap for remelt,
90/6/4 filler scrap for remelt, 95/5 B/W plate scrap for remelt and
BT1-0 B/W scrap for remelt. These designations identify bulk weldable
titanium, 90-95% by weight pure, with either 5 or 6% aluminum and 4%
vanadium, as indicated. The designation BT1-0 is actually BT-10, which
identifies a commercially pure Russian alloy that does not meet domestic
specifications for commercially pure titanium. The merchandise is
imported in 55-gallon drums. Customs Laboratory Report 3-97-20331-001,
dated May 6, 1997, with respect to an entry your office indicates is
identical to the one under protest, identifies a section of a bar or
billet having a cross-sectional dimension of 13.5 centimeters x 13.5
centimeters, containing chiefly titanium and small amounts of iron,
chromium and aluminum.

\- 2 -

The titanium was entered under a duty-free provision in HTS heading
8108, titanium waste and scrap. Your office determined that the
referenced laboratory report did not support the waste and scrap claim,
and liquidated the entry under the appropriate provision in heading 8108
for other titanium. Counsel contends that the waste and scrap
classification is correct because the merchandise is cracked, and has
exfoliated ends and piping. Because of breakage, cutting-up and wear, it
is suitable only for remanufacture. In the alternative, counsel claims
the merchandise is eligible for duty-free entry under subheading
9817.00.90, HTSUS, as remelt scrap to be used in remanufacture.

The provisions under consideration are as follows:

**8108** Titanium and articles thereof, including waste and scrap:

**8108.10** Unwrought titanium; waste and scrap; powders:

**8108.10.10** Waste and scrap

**8108.10.50** Other

**8108.90** Other:

**8108.90.60** Other

**\* \* \* \***

Unwrought metal including remelt scrap

ingot\...in the form of ingots\...which are

defective or damaged, or have been produced from melted down metal waste
and scrap for

convenience in handling and transportation without sweetening, alloying,
fluxing or

deliberate purifying, and which cannot be

commercially used without remanufacture\...;

Relaying or rerolling rails; articles of metal (\...not including
unwrought metal

provided for in chapters 72-81) to be

used in remanufacture by melting\...:

**9817.00.90** Other

\- 3 -

**ISSUE**:

Whether the titanium under protest qualifies as any of the types of
goods described in heading 9817.

**LAW AND ANALYSIS**:

Merchandise is classifiable under the Harmonized Tariff Schedule of the
United States (HTSUS) in accordance with the General Rules of
Interpretation (GRIs). GRI 1 states in part that for legal purposes,
classification shall be determined according to the terms of the
headings and any relative section or chapter notes, and provided the
headings or notes do not require otherwise, according to GRIs 2 through
6.

Initially, Section XV, Note 8(a), HTSUS, defines [Waste and
scrap]{.underline} as metal waste and scrap from the manufacture or
mechanical working of metals, and metal goods definitely not usable as
such because of breakage, cutting-up, wear or other reasons. Also, for
purposes of chapters 72 through 83, Section XV, Additional U.S. Note 1,
HTSUS, defines the term "[unwrought]{.underline}" as refer\[ring\] to
metal, whether or not refined, in the form of ingots, among other
similar manufactured primary forms, but \[the term\] does not cover
rolled, forged, drawn or extruded products, tubular products or cast or
sintered forms which have been machined or processed otherwise than by
simple trimming, scalping or descaling.

The evidence of record does not support the claim that the merchandise
qualifies as waste and scrap. On the contrary, the referenced laboratory
report identifies the merchandise as bar or billet without further
elaboration as to its condition. Customs laboratory reports and their
methods of weighing, measuring and testing merchandise are presumed to
be correct. *See* [Consolidated Cork v. United States]{.underline}, 54
Cust. Ct. 2512 (1965), [HQ]{.underline} 950929, dated March 31, 1992,
and related cases.

Counsel's alternative claim under heading 9817 is based on Chapter 98,
U.S. Note 1, HTSUS. Under this provision, even if the merchandise is
classifiable as other titanium of heading 8108, as liquidated, or is
classifiable elsewhere in chapters 1 through 97, if it is an article
described in any provision in chapter 98 it is classifiable in said
provision if the conditions and requirements thereof and of any
applicable regulations are met.

\- 4 -

Subheading 9817.00.90 describes three types of goods:

\(1\) Unwrought metal including remelt scrap ingot (except copper, lead,
zinc and tungsten) in the form of pigs, ingots, or billets

\(a\) which are defective or damaged, or have been

produced from melted down metal waste and scrap

for convenience in handling and transportation

without sweetening, alloying, fluxing or

deliberate purifying, and

\(b\) which cannot be commercially used without

remanufacture;

\(2\) relaying or rerolling rails; and,

\(3\) articles of metal (except articles of lead, or zinc or of
tungsten, and not including metal-bearing materials provided for in
section VI, chapter 26 or subheading

8548.10 and not including unwrought metal provided for

in chapters 72-81) to be used in remanufacture by

melting or to be processed by shredding, shearing,

compacting, or similar processing which renders the

fit only for the recovery of the metal content.

As to type (1), bars are hot-rolled from billets; moreover, technical
information available to us indicates that to get the required
microstructure and tensile strength titanium billets are most always
forged. *See* [HQ]{.underline} 960800, dated November 17, 1998. Rolled
or forged products are not unwrought for tariff purposes. The articles
under protest are clearly not type (2) relaying or rerolling rails.

The titanium billets and bars do, however, qualify as type (3) articles
predominating by weight of metal to be used in remanufacture by melting,
provided there is satisfactory compliance with section 54.6, Customs
Regulations (19 CFR 54.6). Among the documents in the protest file are a
Declaration of Intent to subject the merchandise in the protested entry
to a process of remanufacture by remelting, and two Statements of Actual
Use**,** one for 90/6/4 B/W scrap for remelt and the other for 95/5 B/W
plate scrap for remelt. Both relate to merchandise in the protested
entry. However, there is no such Statement for merchandise identified as
BT1-0 or BT-10 B/W scrap for remelt.

\- 5 -

**HOLDING**:

The titanium billets and bars in issue are provided for in heading 9817.
They are classifiable in subheading 9817.00.90, HTSUS, provided that
within the time allowed the protestant or his counsel submits the
required end use certificate covering the BT1-0 or BT-10 B/W scrap for
remelt, and provided further there is otherwise full compliance with 19
CFR 54.6.

The protest should be ALLOWED on the conditions stated above. In
accordance with Section 3A(11)(b) of Customs Directive 099 3550-065,
dated August 4, 1993, Subject: Revised Protest Directive, 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 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 of Regulations and Rulings will make the
decision available to Customs personnel, and to the public on the
Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by
means the Freedom of Information Act, and other methods of public
distribution.

Sincerely,

John Durant, Director

Commercial Rulings Division