CLA-2 CO:R:C:M 953441 RFA
District Director of Customs
Second & Chestnut Streets
Room 102
Philadelphia, PA 19106
RE: Protest No. 1101-93-100057; Electronic Volume Corrector; Gas
meter; measuring and checking instruments for gas; heading
9026; EN 90.28
Dear District Director:
The following is our decision regarding the request for
further review of Protest No. 1101-93-100057, which concerns the
classification of an electronic volume corrector under the
Harmonized Tariff Schedule of the United States (HTSUS). The
subject merchandise was liquidated on November 27, 1992. The
protest was timely filed on January 26, 1993.
FACTS:
The subject merchandise is the model 900 electronic volume
corrector ("EVC") which is used with a gas meter in order to
render more accurate readings. The EVC contains an integral
pressure sensor which monitors gas line pressure, as well as
receive measurement signals from an electronic temperature probe.
A pulse encoder mounted on the already-in place rotary supply
meter transmits a pulse rate proportional to the gas volume
passing through it. The EVC accepts these pulses and modifies
the data to adjust for varying temperature and pressure levels of
the gas. The resulting output of the EVC is therefore a more
accurate measurement of the total volume delivered.
The merchandise was entered under subheading 9026.80.60,
HTSUS, as other instruments for measuring and checking the flow
rate and pressure of gases. The entry was liquidated under
subheading 9028.10.00, HTSUS, as gas supply or production meters.
Classification of the merchandise under subheading 9028.90.00,
HTSUS, as parts and accessories of supply meters, is also under
consideration.
The subheadings under consideration are as follows:
9026.80.60: Instruments and apparatus for measuring or
checking the flow, level, pressure or other
variables of liquids or gases (for example,
flow meters, level gauges. . .), excluding
instruments and apparatus of heading . . .
9028 or 9032 . . .: [o]ther instruments and
apparatus: [o]ther: [o]ther. . .
Goods classifiable under this provision have a general,
column one rate of duty of 4.7 percent ad valorem.
9028.10.00 Gas, liquid or electricity supply or
production meters, including calibrating
meters thereof. . .: [g]as meters. . .
Goods classifiable under this provision have a general,
column one rate of duty of $0.45 each + 7.0 percent ad
valorem.
9028.90.00 Gas, liquid or electricity supply or
production meters, including calibrating
meters thereof. . .: [p]arts and accessories
. . .
Goods classifiable under this provision have a general,
column one rate of duty of 9.0 percent ad valorem.
ISSUE:
Whether the EVC is classifiable as an instrument to measure
or check the flow of gas or as a supply gas meter or as parts and
accessories of a supply gas meter under the HTSUS?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1 provides that classification shall be
determined according to the terms of the headings and any
relative section or chapter notes.
The importer argues that the merchandise should be
classified under heading 9026, HTSUS, because the EVC is used to
measure the volume of gases within a specific area using both a
gas meter and a temperature and/or pressure sensor. However,
heading 9026, HTSUS excludes instruments and apparatus of heading
9028, HTSUS. Therefore, if the EVC is provided for in Heading
9028, HTSUS, then classification under Heading 9026, HTSUS, would
be precluded.
The Harmonized Commodity Description and Coding System
Explanatory Notes (EN) constitute the Customs Cooperation
Council's official interpretation of the HTSUS. While not
legally binding, the ENs provide a commentary on the scope of
each heading of the HTSUS and are generally indicative of the
proper interpretation of these headings. EN 90.28, page 1519,
states gas supply or production meters are "used to measure in
volumetric units the amount of fluid passing through a pipe."
After the EVC reads the line pressure and temperature, it
adjusts the input data coming in from the flow sensor. The
output of the EVC is only a more accurate measurement of the
volume of gas used than would normally be recorded directly from
the flow turbine. Based upon the definition of supply gas meters
in EN 90.28, we find that the EVC is classifiable as an accessory
to supply gas meters under subheading 9028.90.00, HTSUS. Because
the EVC is classifiable under heading 9028, HTSUS, it is
therefore precluded from being classified under heading 9026,
HTSUS.
HOLDING:
For the foregoing reasons, the EVC is classifiable under
subheading 9028.90.00, HTSUS, as an accessory to gas supply
meters.
Since the rate of duty under the classification of the
merchandise as indicated above is more than the liquidated rate,
you should deny the protest in full. A copy of this decision
should be attached to Customs Form 19 and provided to the
protestant as part of the notice of action on the protest.
Sincerely,
John Durant, Director