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HQ 966934




May 6, 2004

CLA-2 RR:CR:GC 966934 NSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 8411.82.8000; 8411.99.9060

Port Director
Port of Newark/New York c/o Protest and Control Section
1100 Raymond Boulevard, Suite 402
Newark, NJ 07102

RE: Protest 4601-03-102749; Gas turbine and parts

Dear Port Director:

This is our decision on Protest 4601-03-102749, filed on behalf of GE Packaged Power, Inc., against your classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of gas turbines and parts thereof. The entries under protest were liquidated on August 15, 2003, under subheading 8411.82.8000 and 8411.99.9060, HTSUSA, respectively, and this protest was timely filed on September 17, 2003.

FACTS:

The merchandise at issue is the GE 10 gas turbine engine and parts thereof. It is a heavy-duty gas turbine for power generation and mechanical drive applications. The engine offers two configurations: two shaft for mechanical drive and single shaft for power generation/cogeneration applications. In its two shaft configuration, the power output of the engine is 11,690 kilowatts; in its single shaft configuration the power output is 11,250 kilowatts. The GE 10 is derived from the PGT10A gas turbine, an engine similarly developed for power generation and mechanical drive applications.

Protestant claims classification of the gas turbines under subheading 8411.12.80, HTSUS, which provides for “Turbojets, turbopropellers and other gas turbines and parts thereof: Turbojets: Of a thrust exceeding 25 kN: Other,” and of the parts under subheading 8411.91.90, HTSUS, which provides for “Turbojets, turbopropellers and other gas turbines and parts thereof: Parts: Of turbojets or turbopropellers: Other.”

ISSUE:

What is the tariff classification under the HTSUS of the gas turbine engine and parts thereof?

LAW AND ANALYSIS:

Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the remaining GRIs.

The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. The ENs, although neither dispositive or legally binding, facilitate classification by providing a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.

The HTSUS provisions under consideration are as follows:

Turbojets, turbopropellers and other gas turbines, and parts thereof:

Turbojets:

Of a thrust exceeding 25kN:

Other

Other gas turbines:

Of a power exceeding 5,000 kW:

Other

Parts:

Of turbojets or turbopropellers:

8411.91.90 Other

Other:

8411.99.90 Other

At liquidation, the entries were classified under subheading 8411.82.80, HTSUS, as gas turbines and the parts were classified under subheading 8411.99.90, HTSUS, as parts of nonaircraft gas turbines. Protestant claims classification of the entries under subheading 8411.12.80, HTSUS, as turbojets, and of the parts under subheading 8411.91.90, HTSUS, as parts of turbojets. Heading 8411, HTSUS, covers three types of engines: Turbojets; Turbopropellers; and Other Gas Turbines. EN 84.11 parallels the heading listings for these three engine types and states in pertinent part as follows:

This heading covers turbo-jets, turbo-propellers and other gas turbines.

Turbo-Jets

A turbo-jet consists of a compressor, a combustion system, a turbine and a nozzle, which is a convergent duct placed in the exhaust pipe. The hot pressurized gas exiting from the turbine is converted to a high velocity gas stream by the nozzle. The reaction of this gas stream acting on the engine provides the motive force which may be used to power aircraft. In its simplest form the compressor and turbine are accommodated on a single shaft. In more complex designs the compressor is made in two parts (a two spool compressor) in which the spool of each part is driven by its own turbine through concentric shafting. Another variation is to add a ducted fan usually at the inlet to the compressor and drive this either by a third turbine or connect it to the first compressor spool. The fan acts in the nature of a ducted propeller, most of its output bypassing the compressor and turbine and joining the exhaust jet to provide extra thrust. This verstion is sometimes called a “bypass fan jet.”

Turbo-Propellers

Such engines are similar to turbo-jets, but have a further turbine downstream of the compressor turbine, which is coupled to a conventional propeller such as is used on piston engined aircraft. This latter turbine is sometimes referred to as a “free turbine,” meaning that it is not mechanically coupled to the compressor and compressor turbine shaft. Thus most of the hot pressurized gas leaving the compressor turbine is converted into shaft power by the free turbine instead of being expanded in a nozzle as is the case in turbo-jets. In some cases, the gases leaving the free turbine may be expanded in a nozzle to provide auxiliary jet power and assist the propeller.

Other Gas Turbines

This group includes industrial gas-turbine units which are either specifically designed for industrial use or adapt turbo-jets or turbo-propeller units for uses other than providing motive power for aircraft.

There are two types of cycles:

The simple cycle, in which air is ingested and compressed by the compressor, heated in the combustion system and passed through the turbine, finally exhausting to the atmosphere. The regenerative cycle, in which air is ingested, compressed and passed through the air pipes of a regenerator. The air is pre-heated by the turbine exhaust and is then passed to the combustion system where it is further heated by the addition of fuel. The air/gas mixture passes through the turbine and is exhausted through the hot gas side of the regenerator and finally to the atmosphere.

There are two types of designs:

The single-shaft gas turbine unit, in which the compressor and turbine are built on a single shaft, the turbine providing power to rotate the compressor and to drive rotating machinery through a coupling. This type of drive is most effective for constant speed applications such as electrical power generation. The two-shaft gas turbine unit, in which the compressor, combustion system and compressor turbine are accommodated in one unit generally called a gas generator, whilst a second turbine on a separate shaft receives the heated and pressurized gas from the exhaust of the gas generator. This second turbine known as the power turbine is coupled to a driven unit, such as a compressor or pump. Two-shaft gas turbines are normally applied where load demand variations require a range of power and rotational speed from the gas turbine

These gas turbines are used for marine craft and locomotives, for electrical power generation, and for mechanical drives in the oil and gas, pipeline and petrochemical industries.

We note initially that each type of engine designated under heading 8411, HTSUS, is considered to be a “Gas turbine,” but it is the specific construction and use of the gas turbine that determines whether that model is classified as a “Turbojet,” “Turboprop” or “Other Gas Turbine.” Protestant has relied upon the Customs Informed Compliance Publication (ICP) entitled “Turbojets, Turbopropellers and Other Gas Turbines, (HTSUS 8411) and Parts Thereof,” issued January 2000, and New York Ruling Letter (NY) H81222, dated May 31, 2001, to support their claimed classification for the merchandise at issue.

In NY H81222, Customs held that the Rolls-Royce Avon and Rolls-Royce RB-211 gas turbines at issue therein, recognized aircraft engines having been adapted for industrial use (aero-derivative), were classified as turbojets under subheading 8411.12.80, HTSUS. Having had their bypass fan and fan turbines removed to support an alternative industrial use, these adapted engines were no longer capable of providing motive power to an aircraft. However, Customs classified them as turbojets, the classification of these engines in an unaltered state, in keeping with the position that the aero-derivative gas turbine was essentially still a turbojet.

With regard to the Protestant’s reliance on the ICP issued by Customs in January 2000, we note initially that the ICP is published for general information purposes only and therefore cannot serve as the sole basis upon which an importer claims classification. Additionally, Customs revised and reissued this ICP in March 2004. Whereas in the previous version of the ICP turbojet or turboprop gas turbines adapted for industrial use (aero-derivative) were classified under subheading, 8411.11/12, HTSUS and 8411.21/22, HTSUS, respectively, the newly revised ICP reflects the current Customs position that these engines form the class or kind of gas turbine that comprise the “Other gas turbine” subheading group of 8411.81/82, HTSUS. This is because adapted (aero-derivative) turboshaft gas turbines are not within the eo nomine scope of the turbojet or turbopropellers subheading groups. The classification analysis used by Customs in NY H81222 is consistent with the outdated January 2000 version of the ICP. It should be noted that merchandise is classified according to its condition when imported and Customs now intends to reexamine the legal analysis as set forth in NY H81222. See United States v. Citroen, 223 U.S. 407 (1911).

The newly revised ICP additionally explains that the power output of tubojet engines is measured in pound thrust, or so-called kilonewtons, while the power output of turboprop and turboshaft engines is measured in kilowatts. This expression of power is indicative of the type of use to which the engine is put to. Turbojet engines are typically used on high-speed and commercial aircraft wherein compressed air and gas are exhausted from the engine, providing the thrust that powers the aircraft. In contrast, turboprop engines operate on low-speed, low-altitude aircraft, the exhaust flow from the compressor turbine being used to power a conventional propeller as opposed to exhausting into the atmosphere to provide thrust. And, turboshaft engines are typically used in industrial and marine applications, being derived from aircraft engines (aero-derivative), designed specifically for industry, or else used to power a helicopter or boat propeller.

Recent Customs rulings further support the position, as detailed in the March 2004 ICP, that aero-derivative gas turbines normally express power output through a drive shaft, and aircraft turbines for turbojets normally express power output in thrust. See NY J84449, dated June 2, 2003, NY J84454, dated June 2, 2003 and NY J84459, dated June 2, 2003 (engine parts of an aero-derivative gas turbine classified under subheading 8411.99.9060, as parts for “nonaircraft gas turbines”).

Protestant claims that the GE 10 gas turbine engine at issue is an aero-derivative turbofan engine. As previously stated, we note that even if the GE 10 is aero-derivative, i.e. an aircraft engine adapted for industrial use, such a finding would not allow for classification as a turbofan engine, but rather as “Other gas turbines” under subheading 8411.82, HTSUS. However, in this instance, the GE 10 is derived from the PGT10A gas turbine, an engine not used in aircraft to provide motive power, but rather developed for power generation and mechanical drive applications. As such, the GE 10 cannot be considered aero-derivative and the Protestant mistakenly relied upon NY H81222, which applied exclusively to aero-derivative engines.

Furthermore, the GE 10 is not an aircraft engine. The GE 10, like its predecessor the PGT10A, is designed for power generation and mechanical drive applications and in this instance appears to be for use on the San Fernando Pipeline Project. Power output for the GE 10 is also measured in kilowatts, in this case either 11,250 kilowatts or 11,690 kilowatts, depending on which configuration of the engine is being applied. This measurement of power in kilowatts is not indicative of a turbojet engine, which is measured in kilonewtons, but of a turboshaft gas turbine, an engine for industrial use wherein power is measured in kilowatts. In view of the foregoing, the GE 10 gas turbine is an engine designed for industrial use and is therefore classified under subheading 8411.82.80, HTSUS, as “Turbojets, turbopropellers and other gas turbines, and parts thereof: Other gas turbines: Of a power exceeding 5,000 kW: Other.”

Regarding the parts at issue, although they are prima facie parts of the GE 10 gas turbine at issue, and therefore provided for under heading 8411, HTSUS, we note that this heading falls within chapter 84. As such, Section XVI, Note 2, HTSUS, is applicable. Note 2 states that parts of machines are to be classified as follows:

Parts which are goods included in any of the headings of chapters 84 and 85 (other than headings 8409, 8431, 8448, 8466, 8473, 8485, 8503, 8522, 8529, 8538 and 8548) are in all cases to be classified in their respective headings;

Other parts, if suitable for use solely or principally with a particular kind of machine, or with a number of machines of the same heading (including a machine of heading 8479 or 8543) are to be classified with the machines of that kind or in heading 8409, 8431, 8448, 8466, 8473, 8503, 8522, 8529 or 8538 as appropriate

In this instance, the Protestant has failed to provide information necessary to determine whether the parts are goods separately classifiable in another heading of chapter 84. Pursuant to 19 CFR 174.13(a)(5), the Protestant must provide a specific description of the merchandise affected by the decision as to which protest is made. The absence of this specific information from the record upon the expiration of the 90-day period within which the protest may be filed necessitates the denial of the protest as to the GE 10 gas turbine parts at issue. In view of the foregoing, the GE 10 gas turbine parts are classified as liquidated under subheading 8411.99.90, HTSUS, as “Turbojets, turbopropellers and other gas turbines, and parts thereof: Parts: Other: Other.”

HOLDING:

The GE10 gas turbines are classified under subheading 8411.82.8000, HTSUSA, as “Turbojets, turbopropellers and other gas turbines, and parts thereof: Other gas turbines: Of a power exceeding 5,000 kW: Other.” The rate of duty is 2.5 percent ad valorem.

The GE10 gas turbine parts are classified under subheading 8411.99.9060, HTSUSA, as “Turbojets, turbopropellers and other gas turbines, and parts thereof: Parts: Other: Other.” The rate of duty is 2.4 percent ad valorem.

Duty rates are provided for your convenience 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 are instructed to DENY the protest.

In accordance with the Protest/Petition Processing Handbook (CIS HB, January 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

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