CLA-2 RR:TC:MM 958548 JAS
Port Director of Customs
P.O. Box 1490
St. Albans, VT 05478
RE: PRD 0201-95-100217; Fuel Flow Regulator, Fuel Valve, Heading 8481; Mechanical Apparatus for Regulating the Flow of Fuel to Aircraft Engines;
Automatic Regulating or Controlling Instrument or Apparatus, Heading 9032, Civil Aircraft Agreement (CAA); Section XVI, Note 1(m), Chapter 90, Note 1(g);
HQ 956517, HQ 954950 Distinguished
Dear Port Director:
This is our decision on Protest 0201-95-100217, filed against your classification of a fuel flow regulator. The entry was liquidated on April 14, 1995, and this protest timely filed on May 31, 1995.
FACTS:
The merchandise in issue is a fuel flow regulator, type CASC 500, a device which regulates the flow of fuel to the engines of jet aircraft. The apparatus provides for the adjustment of fuel flow to compensate for variations in altitude, air speed, and changes in air temperature, among others. Devices of this type consist of two subassemblies, a fuel control unit and a pressure ratio control unit.
Protestant maintains the fuel flow regulator is apparatus that regulates or controls the flow of fuel, of the type provided for in subheading 9032.89.60, HTSUS. Goods classifiable in this provision are eligible for duty-free entry under the Civil Aircraft Agreement (CAA), if otherwise qualified. Protestant cites a ruling which it claims classifies similar merchandise in subheading 9032.89.60, HTSUS. You have determined that the fuel flow regulator functions primarily by opening and closing an aperture and, therefore, is a valve provided for in heading 8481.
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The provisions under consideration are as follows:
8481 Taps, cocks, valves and similar appliances...including pressure- reducing valves and thermostatically controlled valves; parts thereof:
Other appliances:
8481.80.90 Other...3 percent ad valorem
* * * *
9032 Automatic regulating or controlling instruments and apparatus; parts and accessories thereof:
Other instruments and apparatus:
9032.89.60 Other...3.6 percent ad valorem
(Free under the CAA)
ISSUE:
Whether the fuel flow regulator is a valve for tariff purposes.
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.
As a preliminary matter, section XVI does not cover articles of Chapter 90. Section XVI, Note 1(m), HTSUS. Likewise, valves and other appliances of heading 8481 are precluded from chapter 90. Chapter 90, Note 1(g), HTSUS. Therefore, if the fuel flow regulator is a valve of heading 8481, it cannot be classified in heading 9032 or elsewhere in Chapter 90.
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 - 3 -
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 ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug.23, 1989).
Protestant maintains that this device is control apparatus connected to the engine's fuel pump by tubes, and that it is the pump which initiates or stops the flow of fuel. We do not agree. Relevant ENs, at pp. 1321 and 1322, state heading 84.81 covers valves and similar appliances used on or in pipes, tanks, vats or the like to regulate the flow (for supply, discharge, etc.) of fluids or, in certain cases, of solids. The heading includes such devices designed to regulate the pressure or the flow velocity of a liquid or gas. Appliances of heading 84.81 regulate the flow by opening or closing an aperture They may be operated by motor, solenoid, thermostatic element or pressure capsule, among other means. Combinations of taps, cocks, valves, etc., with a thermostat, manostat or other measuring, checking or automatically controlling instrument or apparatus of heading 90.26 or 90.32 remain in heading 84.81 if the instrument or apparatus is mounted or designed to be mounted directly on the tap, cock, valve, etc., and provided the combination has the essential character of an article of heading 84.81.
The literature and related descriptions indicate that fuel moves from the wing tanks into the fuel pump, then through the fuel flow regulator in issue, and into the engine. There is no evidence showing direct feed from the fuel pump to the engine. Available information indicates that the pressure ratio control unit of this device senses any changes in engine pressure or other engine variable. This causes a pressure-sensitive capsule in the fuel control unit of the device to reposition a variable metering orifice to meter the fuel supply in order to maintain engine power at desired thrust. In summary, the fuel flow regulator uses engine pressure variables to determine the amount of opening or closing of an aperture, thus "regulating" the flow velocity of the fuel from the fuel pump into the engine. This device performs the function of a valve described in the cited ENs.
In our opinion, the fuel flow regulator is a sophisticated aircraft-type valve. It is described eo nomine, by name, in heading 8481. It remains in that heading because in the absence of contrary legislative intent, judicial decision, or administrative practice, an unlimited eo nomine designation covers all forms of the named article. HQ 956517, dated October 24, 1994, classified a substantially similar fuel flow regulator in subheading 8481.80.90, HTSUS. The ruling cited by protestant, HQ 954950, dated December 23, 1993, is distinguishable. That ruling addressed the classification of a process controller that electronically monitored operating conditions in an automobile - 4 -
engine and returned abnormal conditions to preprogrammed levels. The fuel flow regulator in issue does not function in this manner. Because the fuel flow regulator is a valve of heading 8481, Chapter 90, Note 1(g), HTSUS, makes it unnecessary to consider heading 9032.
HOLDING:
Under the authority of GRI 1, the fuel flow regulator, type CASC 500, is provided for in heading 8481. It is classifiable in subheading 8481.80.90, HTSUS.
The protest should be 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 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