CLA-2 RR:CR:GC 964529 JAS
Port Director of Customs
1624 E 7th Ave., Suite 101
Tampa, FL 33605
RE: Protest 1801-00-100009; Autothrottle
Dear Port Director:
This is our decision on Protest 1801-00-100009, filed against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of the autothrottle. The entry under protest was liquidated on November 5, 1999, and this protest timely filed on February 1, 2000.
With the Customs Form 19 counsel for the protestant presented a Memorandum of Law setting forth arguments to support its claimed classification, which it supplemented in a submission, dated March 28, 2001. Counsel presented additional facts and legal arguments at a meeting in our office on July 18, 2001, which were confirmed in a submission, dated August 16, 2001.
FACTS:
The article at issue, the autothrottle, product code 760SUE1-1, is part of an integrated engine management system, the purpose of which is to automatically formulate a flight plan and adjusts the positions of the flight controls during operation. The autothrottle’s specific function is to control the position of engine throttle levers that regulate the supply of fuel to an aircraft’s engines. In a fully automated system, the pilot selects one of the
pre-programmed flight plans or routes in the Flight Management Control
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System (FMCS), which consists of a central processing unit, display and keyboard. In a semi-automatic system, the pilot may input distances, speeds and directions through a control panel. The FMCS then transmits to the autothrottle the positions of the throttle control levers necessary to maintain, increase or decrease engine thrust consistent with the flight plan selected. The autothrottle uses servomotors to move to the correct position the control levers which regulate the throttle valve. The valve opening thus determines the amount of fuel entering the engine and, consequently, engine fan speed.
On the theory that the device automatically regulates the speed of the aircraft during flight, the autothrottle was entered under a provision of heading 9014, HTSUS, as other navigational instruments and appliances. Upon review of submitted literature, the autothrottle was found to be a type of programmable controller. The entry was therefore liquidated under a provision of heading 8537, HTSUS.
Counsel for the protestant makes the following arguments in support of the heading 9014 classification: it controls speed – and therefore direction - during flight; the autothrottle is akin, by function, to an autopilot or automatic pilot provided for in heading 9014, as it automatically adjusts the position of flight controls (i.e., the throttle levers); the provision for automatic pilots covers a commodity eo nomine, by name, and an unlimited eo nomine designation will include all forms of the named article; and, as the autothrottle is provided for in heading 9014, it is excluded from heading 8537 by Section XVI, Note 1(m), HTSUS.
ISSUE:
Whether the autothrottle is a navigational instrument or appliance of heading 9014.
LAW AND ANALYSIS:
Under General Rule of Interpretation (GRI) 1, Harmonized Tariff Schedule of the United States (HTSUS), goods are to be classified 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.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. Though not dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS. Customs believes the ENs should always be consulted. See T.D. 89-80. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
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Initially, articles of Chapter 90 are precluded from classification in heading 8537. See Section XVI, Note 1(m), HTSUS. So, if the autothrottle is provided for in heading 9014 it cannot be classified in heading 8537.
As to the heading 9014 claim, the terms navigate or navigation are not defined in the legal text of the HTSUS. Such terms, therefore, are to be construed according to their common and commercial meanings which are presumed to be the same. In common meaning, these terms connote the science or art of conducting aircraft from one place to another, especially, the method of determining position, course and distance traveled over the surface of the earth by the principles of geometry and
astronomy, and by reference to instruments used as aids. The ENs, at pp. 1602 and 1603, (C)(1) through (7), list under (II) OTHER NAVIGATIONAL INSTRUMENTS AND APPLIANCES, various meters and indicators which measure or determine
aerodynamic variables and provide the pilot with information from which he can effect changes in the plane's course. In fact, the Federal Aviation Administration recognizes visual or electronic devices, airborne or on the surface, which provide point-to-point guidance information or position data to aircraft as “navigational aids.” See Northwest Airlines, Inc. v. United States, 22 C.I.T. 797, 17 F. Supp. 2d 1008 (1998).
While the exemplars cited in the ENs are certainly illustrative of the type of goods classifiable in heading 9014, they cannot be considered exhaustive of devices that are otherwise within the common and commercial meaning of the terms in the 9014 heading text. In our opinion, instruments and appliances that establish, maintain or change an airplane’s position and course, and thereby have a direct or proximate causal connection to the movement of the plane from one place to another, also perform a navigational function for purposes of heading 9014. For example, the slat/flap control computer that sets, monitors and adjusts the wing slats and flaps of a plane, and thus determine the plane’s proper rate or ascent and descent, directly relate to the plane’s course or position, are regarded as navigational instruments and appliances of heading 9014. See HQ 087979, dated February 3, 1992. Similarly, the spoiler and elevator control computer that performs a similar function with respect to spoilers, which are movable flaps on each wing that function as brakes to slow the aircraft for landing, and elevators, which are flaps that control the pitch of an aircraft, that is, makes the tail go up or down, was likewise held to be a good of heading 9014. See HQ 953462, dated April 21, 1993. On the other hand, HQ 955080, dated April 6, 1994, addressed the tariff status of a Throttle Control Unit (TCU), a device that converts to an electrical signal the mechanical movement created when the pilot moves the throttle lever, which it then sends to the Engine Control Unit (ECU). Through the signal generated by the TCU, the ECU controls the amount of power or thrust each engine generates. In rejecting a claim under heading 9014, HQ 955080 concluded that the TCU was navigational only in the
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strictest and most technical sense and that tariff terms do not include everything within their literal meaning. In its March 28, 2001, submission, counsel agrees that the TCU was correctly classified outside of heading 9014 because it was part of a flight control system, and such flight controls are not recognized as navigational instruments.
In its August 16, 2001, submission, counsel notes that on p. 1603, the ENs
list (7) Automatic pilots among the goods included in heading 9014. The argument is that the only difference between an automatic pilot and the Autothrottle is that the former interfaces with flight controls that determine aircraft position while the latter interfaces with the controls that determine aircraft speed. The conclusion is that as there is no material difference between the two devices, they should both be classified in heading 9014. This EN describes automatic pilots as apparatus that temporarily replaces the pilot by controlling the equilibrium and flight of the aircraft in accordance with a pre-established setting (altitude, course, etc.) It consists chiefly of direct-operated or servo-motor controls and of automatic acting apparatus which co-ordinate instrument readings and the action of servo-motors. The McGraw-Hill Multimedia Encyclopedia of Science & Technology, McGraw-Hill, Inc. (1995), contains the following discussion of the basic concepts of automatic pilots:
Automatic pilots are automatic means for steering an aircraft. Also
called autopilots, they make the aircraft fly in the same manner as a
highly trained proficient pilot. An automatic pilot must provide smooth
control and avoid sudden and erratic behavior. The intelligence for
control must come from sensors such as gyroscopes, accelerometers,
altimeters, airspeed indicators, automatic navigators, and various types
of radio-controlled data links. The autopilot converts this information in
order to operate the normal aerodynamic controls of the aircraft.
In our opinion, the processing and utilization of information relative to automatically controlling an airplane’s movements is performed by the FMCS, often in connection with the automatic pilot which, in some cases, reside in the same housing. By contrast, the specific, limited function of the autothrottle is to position the engine throttle levers that control the aperture of the valve that supplies fuel to the aircraft’s engines. The autothrottle lacks the sophistication of an instrument or appliance that establishes, maintains or changes an airplane’s position and course. It does not have the direct proximate causal connection to the movement of the plane from one place to another, required of a navigational instrument or appliance of heading 9014. In our opinion, the autothrottle is compellingly analogous, by function and design, to the Throttle Control Unit (TCU), the subject of HQ 955080.
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Relevant ENs under (3) at p.1506 state that "Programmable controllers" of heading 8537 are digital apparatus using a programmable memory for the storage of instructions for implementing specific functions such as logic, sequencing, timing, counting, and arithmetic, to control, through digital analog/output modules, various types of machines. The National Electrical Manufacturers Association (NEMA) defines the term in nearly identical language, noting the device functions to control machines and
processes. A programmable controller's ultimate purpose is to control output devices. It does this by reading input signals from pushbuttons, contacts or switches and deciding what the outputs should be, based on the user's program logic. It then takes the logic-level signals from the program logic solver and converts them to output signals which it then sends to output devices such as solenoids, valves, etc. See Thomas A. Hughes, Programmable Controllers 1 (1989). The available information indicates that the autothrottle compares a signal generated by the FMCS to its programmed instructions, and controls an output device, in this case by placing the throttle control levers in position to insure that the throttle valve dispenses the prescribed amount of fuel to the engine. We conclude that the autothrottle is a control device of heading 8537. It is noteworthy, in this respect, that in response to a Customs Form 28, Request for Information, dated July 27, 1999, the importer/protestant described the autothrottle as a “programmable controller.”
HOLDING:
Under the authority of GRI 1, the autothrottle, product code 760SUE1-1, is provided for in heading 8537. It is classifiable in subheading 8537.10.90, 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 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 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 make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division