# HQ 967354

January 26, 2005

## CLA-2 RR:CR:GC 967354 DSS

**CATEGORY:** Classification

**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:

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

      90. Other:

          30. Articles of titanium:

          ```{=html}
          <!-- -->
          ```
          3060. Other.

          ```{=html}
          <!-- -->
          ```
          60. 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]{.underline}

> 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]{.underline} 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,]{.underline} 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]{.underline}, 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