CLA-2 RR:TC:MM 958806 JAS

Port Director of Customs
200 Granby Street
Norfolk, VA 23510

RE: PRD 1401-95-100253; Titanium Ingots, Unwrought Titanium; Heading 8108, Section XV, Additional U.S. Note 1; Remelt Scrap Ingots, Defective or Damaged Ingots, Subheading 9817.00.90; Chapter 98, U.S. Note 1

Dear Port Director:

This is our decision on Protest 1401-95-100253, filed against your classification of titanium ingots made in Russia. The entries were liquidated on August 25 and September 15, 1995, and this protest timely filed on October 26, 1995. Counsel for the protestant made supplemental submissions dated June 17 and July 11, 1996.

FACTS:

The merchandise is referred to variously as bulk weldable titanium, unwrought titanium, titanium ingots or scrap titanium ingots. A purchase order describes the ingots as 11 inches in diameter, either 30 or 86 inches long, and weighing between 300-400 lbs. Counsel describes the merchandise as remelt scrap ingots or as bulk weldable scrap, a term by which they are said to be known in the industry. Counsel maintains the merchandise is defective titanium ingots produced from reverted scrap. It includes tungsten carbide fragments and other refractory particles called "inclusions" which can only be eliminated by further remelting and refining. After importation, these ingots are welded to other titanium pieces of the same grade and melted in a vacuum arc furnace. The product is said to be remelted two (2) times for standard quality applications and three (3) times for critical quality applications such as the aircraft industry. Remelt certificates for the merchandise under protest were provided for our examination. - 2 -

The titanium was entered under a duty-free provision in heading 8108, Harmonized Tariff Schedule of the United States (HTSUS), for titanium waste and scrap. Your office determined that ingots are other forms of unwrought titanium and liquidated the entries under the appropriate provision in heading 8108. Counsel now claims the merchandise is eligible for duty-free entry under subheading 9817.00.90, HTSUS, as unwrought metal in ingot form which is defective or damaged.

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...Free

8108.10.50 Other...15 percent ad valorem

* * * *

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...; Articles of metal (...not including unwrought metal provided for in chapters 72-81) to be used in remanufacture by melting...: 9817.00.90 Other...Free

ISSUE:

Whether the titanium ingots are unwrought metal in ingot form which are damaged or defective for purposes of subheading 9817.00.90. - 3 -

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, for purposes of chapters 72 through 83, Section XV, Additional U.S. Note 1, HTSUS, defines the term "unwrought" as refer[ring] to metal, whether or not refined, in the form of ingots, among other similar manufactured primary forms, but 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. In a letter dated July 11, 1996, counsel confirmed that the merchandise under protest is, in fact, unwrought for tariff purposes.

Pursuant to Chapter 98, U.S. Note 1, HTSUS, even if the merchandise is unwrought titanium of heading 8108 or is classifiable elsewhere in HTS 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.

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, - 4 -

(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.

The ingots in issue here are unwrought for tariff purposes. They are not type (2) relaying or rerolling rails, nor are they type (3) articles of metal, because unwrought metal of chapters 72-81 is excluded. The issue, then, is whether the ingots are type (1) forms of unwrought metal. The terms defective and damaged are not defined in the heading 9817.00.70 text, nor is there any available legislative history on the scope of the terms. In common meaning, however, the terms are quite broad and embrace any kind of imperfection, or the lack of an element that impairs usefulness or is necessary to a thing's completeness, whether in terms of physical appearance, structure or quality.

Conventional titanium ingots range from 28-36 inches in diameter and weigh from 7,000-15,000 lbs. The ingots under protest are significantly smaller in physical dimensions and lighter in weight. In addition, despite the fact these ingots were ordered to specific chemistry, they contained significant amounts of tungsten carbides and other refractory particles called inclusions. These are objectionable and must be removed to render the product commercially useful. Only after these inclusions are removed by remelting is the product recast as chemically certified prime ingot and made suitable for eventual processing into bar and ultimately into forged products requiring the highest quality standards, such as aircraft parts. The evidence here suggests that the titanium ingots here are damaged or defective for tariff purposes, and are of the type that cannot be commercially used without remanufacture.

HOLDING:

Under the authority of GRI 1, the titanium ingots in issue here are provided for in heading 9817. They are classifiable in subheading 9817.00.90, HTSUS.

The protest should be ALLOWED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you should mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any - 5 -

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 take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and to the public via the Diskette Subscription Service, the Freedom of Information Act and other public access channels.


Sincerely,

John Durant, Director
Tariff Classification
Appeals Division