**HQ H023502**

**July 8, 2008**

**CLA-2 OT:RR:CTF:TCM** H023502 RM

**CATEGORY:** Classification

**TARIFF NO.:** 8412.90.9080

Port Director

U.S. Customs and Border Protection

610 W. Ash Street Suite 1005\
San Diego, CA 92101

**RE:** Classification of Wind Turbine Blades; Protest No.
2506-08-100005

Dear Port Director:

The following is our decision regarding the Application for Further
Review ("AFR") of Protest No. 2506-08-100005, timely filed by counsel,
on behalf of GE Wind Energy, LLC ("GE"), concerning classification of
blades for GE wind turbines under the Harmonized Tariff Schedule of the
United States ("HTSUS").

**FACTS:**

This protest concerns propeller blades designed for GE Wind-Turbine
Generator Systems.[^1] The blades capture wind energy and transfer that
energy to a wind turbine. The turbine, in turn, converts wind energy
into torque, which then drives a generator that produces electrical
energy.[^2] The blades are manufactured from fiberglass epoxy resin.
Three blades are used on each wind turbine.

The merchandise was entered on September 27, 2006, under heading 8503,
HTSUS, as parts of wind-powered electric generating sets, and liquidated
as entered The merchandise was liquidated as entered on August 10, 2007.
Protestant filed the instant protest and AFR on January 14, 2008,
claiming classification under heading 8412, HTSUS, as parts of other
engines and motors.

**ISSUE:**

Whether the blades are classified as parts of generator sets under
heading 8503, HTSUS, or as parts of wind turbines under heading 8412,
HTSUS?

**LAW AND ANALYSIS:**

Initially, we note that the matter is protestable under 19 U.S.C. §
1514(a)(2) as a decision on classification. The protest was timely
filed, within 180 days of liquidation for all involved entries
(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)).

Further Review of Protest No. 2506-08-100005 was properly accorded to
protestant pursuant to 19 C.F.R. § 174.24(a) because the decision
against which the protest was filed is alleged to be inconsistent with a
ruling of the Commissioner of Customs or his designee, or with a
decision made at any port with respect to substantially similar
merchandise.

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 HTSUS headings under consideration are as follows:

8412 Other engines and motors, and parts thereof:

8412.90 Parts:

8412.90.90 Other ...

8412.90.9080 Other ...

\* \* \*

8503.00 Parts suitable for use solely or principally with the machines
of heading 8501 or 8502:

8503.00.95 Other ...

8503.00.95.45 Parts of generators ...

\* \* \*

The Harmonized Commodity Description and Coding System Explanatory Notes
(ENs) constitute the official interpretation of the Harmonized System at
the international level. While not legally binding nor dispositive, the
ENs provide a commentary on the scope of each heading of the HTSUS and
are generally indicative of the proper interpretation of these headings.
[See]{.underline} T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23,
1989).

Heading 8412, HTSUS, covers "\[o\]ther engines and motors." The ENs to
heading 8412, HTSUS, state, in part:

> This heading includes reaction engines (other than turbo-jets),
> pneumatic power engines and motors, wind engines (windmills),
> spring-operated or weight-operated motors, etc.

Heading 8503, HTSUS, provides for "\[p\]arts suitable for use solely or
principally with the machines of heading 8501 or 8502." The ENs to
heading 8502, HTSUS, state, in part:

> **Subject** to the general provisions regarding the classification of
> parts (see the General Explanatory Note to Section XVI) this heading
> covers parts of the machines of the two proceeding headings.

Heading 8502, HTSUS, provides for: "\[e\]lectric generating sets and
rotary converters." Wind-powered generating sets are specifically
provided for in subheading 8502.31.00, HTSUS. The ENs to heading 8502,
HTSUS, state, in part:

(I) **ELECTRIC GENERATING SETS**

> The expression "generating sets" applies to the combination of an
> electric generator and any prime mover **other than an electric
> motor** (e.g., hydraulic turbines, steam turbines, wind engines,
> reciprocating steam engines, internal combustion engines). Generating
> sets consisting of the generator and its prime mover which are mounted
> (or designed to be mounted) together as one unit or on a common base)
> are classified here **provided** they are presented together (even if
> packed separately for convenience of transport).
>
> **PARTS**
>
> **Subject** to the general provisions regarding the classification of
> parts (see the General Explanatory
>
> Note to Section XVI), parts of machines of this heading are classified
> in **heading 85.03**

(Emphasis in original)

Protestant contends that the wind turbine blades are properly classified
under heading 8412, specifically subheading 8412.90.9080, HTSUS, as
parts of other engines and motors. In support of this position,
protestant cites to New York Ruling Letter ("NY") N007816, dated March
28, 2007, in which CBP classified similar merchandise under subheading
8412.90.9080, HTSUS.

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]{.underline}, 110 F.3d 774 (Fed. Cir. 1997) (\"We conclude that
these cases are not inconsistent and must be read together.\" At 779)).
The first, articulated in [United States v. Willoughby Camera
Stores]{.underline}, 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.\" At 324. The second line of cases, which
evolved from [United States v. Antonio Pompeo]{.underline}, 43 CCPA 9,
C.D. 1669 (1955), hold that a device may be a part of an article even
though its use is optional and the article will function without it, if
the device is dedicated solely for use upon the article, and, once
installed, the article will not operate without it.

The blades at issue capture the wind energy used to propel the wind
turbine to which they are attached. Without them, the wind turbines
cannot function. Moreover, the blades are dedicated for use solely with
the wind turbines, and have no independent function. Accordingly, we
conclude that the blades are integral, constituent and component parts
of wind turbines, satisfying the definition of the term "part." Wind
turbine engines are classified in heading 8412, HTSUS.

Subject to certain exceptions that are not relevant here, goods that are
identifiable as parts of machines or apparatus of Chapter 84 or Chapter
85 are classified in accordance with Section XVI, Note 2, HTSUS.[^3]
[See]{.underline} [Nidec Corporation v. United States]{.underline}, 861
F. Supp. 136 (Ct. Int'l Trade 1994), *aff\'d*. 68 F. 3d 1333 (Fed.
Cir.1995). Parts which are goods included in any of the headings of
Chapters 84 and 85 are classified in their respective headings.
[See]{.underline} Note 2(a). Other parts, if suitable for use solely or
principally with a particular machine or with a number of machines of
the same heading, are classified with the machines of that kind.
[See]{.underline} Note 2(b). In this case, as no heading in the HTSUS
describes the blades, they are classified by application of Note 2(b) to
Section XVI, HTSUS, as "parts" suitable for use solely or principally
for wind engines.

With regard to your contention that the blades are more specifically
provided for as parts of the wind-powered generators under heading 8503,
HTSUS, we are guided by the Court of International Trade Decision,
[Mitsubishi Electronics America v. United States]{.underline}, 19 Court
Int'l Trade 378 (1995). In that case, the Court stated that:

> **\[A\]** **subpart of a particular part of an article is more
> specifically provided for as a part of the part than as a part of the
> whole**. [C.F. Liebert v. United States]{.underline}*,* 60 Cust. Ct.
> 677, 686-87, 287 F. Supp. 1008, 1014 (1968) (holding that parts of
> clutches which are parts of winches are more specifically provided for
> as parts of clutches than as parts of winches).
>
> (Emphasis added)

Accordingly, we find that the blades are not provided for under heading
8503, HTSUS, as parts of the wind-powered generator set because they are
more specifically provided for in heading 8412, HTSUS, as parts of
parts, i.e., parts of wind turbines. This conclusion is in keeping with
NY N007816, dated March 28, 2007, and NY M80880, dated April 17, 2006,
in which CBP classified blades for wind turbines under heading 8412,
HTSUS.

**HOLDING:**

Under the authority of GRI 1 and Section XVI, Note 2(b), the blades for
GE wind turbines are classified under heading 8412, specifically
subheading 8412.90.9080, HTSUS, which provides for: "\[o\]ther engines
and motors, and parts thereof: \[p\]arts: \[o\]ther: \[o\]ther." The
2006 column one, general rate of duty is: "\[f\]ree."

The protest should be GRANTED. In accordance with the Protest/Petition
Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), 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 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

[^1]: The GE Wind Energy 1.5sle 60Hz Wind Powered Co-Gen Set is a
    three-bladed, upwind, horizontal-axis wind turbine with a rotor
    diameter of 77m.

[^2]: In addition to the propeller blades, the wind turbine is comprised
    of a hub (or rotor), a spinner (nose cone), a bearing bracket and a
    shaft.

[^3]: Section XVI, Note 5 states that for the purposes of the notes, the
    expression \"machine\" means any machine, machinery, plant,
    equipment, apparatus or appliance cited in the headings of chapter
    84 or 85, HTSUS.