CLA-2:CO:R:C:M 955916 JAS
District Director of Customs
P.O. Box 1490, Rm. 218
St. Albans, VT. 05478
RE: PRD 0201-93-100192; Liquid Density Transducers, Apparatus
for Measuring Density of Fuel; Densitometer Sensor,
Measuring and Checking Instrument for Liquids and Gases,
Heading 9026; Apparatus for Analyzing Physical Properties;
Civil Aircraft Agreement (CAA); NY 863906
Dear Sir:
This is our decision on Protest No. 0210-93-10192, filed
against your classification of certain liquid density transducers
from the UK. The entry under protest was liquidated on March 19,
1993, and this protest timely filed on April 27, 1993.
FACTS:
The merchandise is identified on the Customs Form 6445 as a
liquid density transducer, part #044934-3 Rev G. The liquid
density transducer is described in electronic messages from the
concerned NIS and other data in the file as a resonant sensor.
It is incorporated into a densitometer, which is apparatus that
measures the density or actual mass per-unit-of-volume of fuel
aboard commercial aircraft. This measurement is accomplished by
utilizing changes in the sensor's resonant frequencies caused by
variations in altitude, temperature, fuel type, etc. The
aircraft's fuel gauging system uses these measurements to correct
unacceptable variations in fuel density.
The sensor was entered under the provision for parts and
accessories for measuring or checking instruments and apparatus,
in subheading 9026.90.20, Harmonized Tariff Schedule of the
United States (HTSUS). Merchandise in this provision is eligible
for free entry under the Civil Aircraft Agreement (CAA). On the
advice of the concerned NIS that density is a physical property
of a material, the concerned import specialist liquidated the
entry under the provision for other instruments and apparatus for
physical or chemical analysis, in subheading 9027.80.40, HTSUS. - 2 -
For purposes of headings 9026 and 9027, Customs has traditionally
regarded sensors of this type as apparatus, rather than as parts
and accessories.
Protestant objects to the liquidated classification because
he believes that instruments for physical or chemical analysis
are of a class or kind used in a laboratory environment. On the
other hand, he believes that goods classified in heading 9026 are
not so limited.
The provisions under consideration are as follows:
9026 Instruments and apparatus for measuring or
checking the flow, level, pressure or other
variables of liquids or gases; parts and
accessories thereof:
9026.90 Parts and accessories:
9026.90.20 Of electrical instruments and apparatus
...4.9 percent but free under CAA
* * * * *
9027 Instruments and apparatus for physical or
chemical analysis:
9027.80 Other instruments and apparatus:
9027.80.40 Other: Electrical...4.9 percent
ISSUE:
Whether measuring the density of fuel is physical analysis.
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. Under Rule
3(a), goods that are, prima facie, classifiable in two or more
headings, shall be classified in the heading that provides the
most specific description.
The Harmonized Commodity Description And Coding System
Explanatory Notes (ENs) constitute the Customs Cooperation
Council's official interpretation of the Harmonized System.
While not legally binding on the contracting parties, and - 3 -
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 System. Customs believes the notes should always be
consulted. See T.D. 89-80. 54 Fed. Reg. 35127, 35128 (Aug. 23,
1989).
The sensor under protest is described both in heading 9026
and in heading 9027. However, relevant ENs at p. 1511 state that
apart from instruments or apparatus more specifically covered by
other headings of the Nomenclature, such as: ...(d) Instruments
and apparatus for physical or chemical analysis, etc. (heading
90.27), heading 90.26 covers instruments and apparatus for
measuring or checking the flow, level, pressure, kinetic energy
or other process variables of liquids or gases. Therefore,
heading 90.27, if it applies, is deemed to be more specific than
heading 90.26.
ENs at p. 1515, list oxygen meters for the determination of
dissolved oxygen in liquids by use of a polarometric cell,
polarographic analysers for the determination of the components
of liquids, and wet-chemical analysers, for the determination of
inorganic or organic components of liquids, e.g., traces of
metals, phosphates, etc., among the apparatus covered by heading
90.27. Densitometers and related apparatus are compellingly
analogous to these exemplars. In addition, NY 863906, dated June
19, 1991, classified apparatus for testing and recording the
quality of water, i.e., the amount of dissolved oxygen, as well
as Ph, ammonia and nitrate levels, in subheadings 9027.10.20 and
9027.80.40, HTSUS.
HOLDING:
Under the authority of GRI 3(a), heading 9027 provides the
most specific description for the liquid density transducer, part
#044934-3 Rev G. It is classified in subheading 9027.80.40,
HTSUS, as instruments and apparatus for physical or chemical
analysis.
The protest is DENIED. 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 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 - 4 -
via the Customs Rulings Module in ACS and to the public via the
Diskette Subscription Service, Lexis, the Freedom of Information
Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division