CLA-2:CO:R:C:M 953462 JAS
Area Director of Customs
110 S. Fourth St., Rm. 137
Minneapolis, MN 55401
RE: PRD 3501-90-000102; Spoiler and Elevator Control Computer,
Apparatus for Control and Monitoring Pitch and Landing
Angle; Navigational Instruments and Apparatus; Programmable
Controller, Subheading 8537.10.00, HTSUS; Parts of Aircraft,
Subheading 8803.30.00, HTSUS; Civil Aircraft Agreement (CAA)
Dear Area Director:
This is our decision on Application for Further Review of
Protest No. 3501-90-000102, dated May 17, 1990, filed by counsel
for Northwest Airlines, Inc., against your action in liquidating
an entry of certain instruments from Germany used on the Airbus
A320 aircraft.
FACTS:
The apparatus designated spoiler and elevator control
computer (SEC) is a device used to set, adjust and monitor
spoilers and elevators on the Airbus A320. Spoilers are movable
flaps on each wing that function as brakes to slow the aircraft
down for landing. Elevators are flaps that control the pitch of
an aircraft, i.e., makes the tail go up or down.
The SEC was entered under the duty-free provision for parts
of airplanes or helicopters, in subheading 8803.10.00, Harmonized
Tariff Schedule of the United States (HTSUS). On the advice of
the concerned National Import Specialist, the entry was
liquidated under the provision for boards and panels, equipped
with two or more apparatus of heading 8535 or 8536, for electric
control or the distribution of electricity, for a voltage not
exceeding 1,000 V, in subheading 8537.10.00, HTSUS. In a
submission, dated April 13, 1993, counsel for protestant makes an
alternative claim under subheading 9014.20.60, HTSUS, a provision
for other electrical instruments and appliances for aeronautical
or space navigation. - 2 -
The protest is timely filed, as the entry under protest was
liquidated on February 16, 1990, and the Customs Form 19 received
by Customs on May 17, 1990.
ISSUE:
Whether the SEC is an electrical instrument for aeronautical
or space navigation of heading 9014.
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.
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
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.
Articles of chapter 90 are precluded from classification in
heading 8537, assuming that provision applies. Section XVI, Note
1(m), HTSUS. Likewise, articles of chapter 90 are precluded from
classification in subheading 8803.30.00. Section XVII, Note
2(g), HTSUS. Therefore, if the SEC is provided for in heading
9014, it must be classified therein.
Under heading 9014, the common meaning of the terms navigate
and navigation connotes the science or art of conducting aircraft
from one place to another; especially, the method of determining
position, course and distance travelled over the surface of the
earth by the principles of geometry and astronomy, and by
reference to instruments used as aids. The ENs, at p. 1481,
(C)(1) through (7), list various meters and indicators which
measure or determine aerodynamic variables and provide the pilot
with information from which he can activate apparatus that
maintains or alters the plane's course. The exemplars, however,
are not intended to be exclusive. In our opinion, the correct
positioning and maintaining of the elevators and spoilers
determines the plane's proper pitch or up-and-down movement and
rate of descent; these functions clearly relate to the plane's
course or position. We conclude that the SEC is a navigational
instrument provided for in heading 9014. Merchandise - 3 -
compellingly analogous to the SEC has recently been found to be
classified in subheading 9014.20.60, HTSUS. See PRD 087979,
dated February 3, 1992, directed to your attention.
HOLDING:
Under the authority of GRI 1, the spoiler and elevator
computer (SEC) for the Airbus A320 is provided for in heading
9014. Actual classification is in subheading 9014.20.60, HTSUS,
other electrical instruments and appliances for aeronautical or
space navigation. The rate of duty on such instruments and
appliances under the Agreement on Trade in Civil Aircraft is
free.
The protest should be allowed. A copy of this decision
should be attached to the Customs Form 19 and mailed to the
protestant, through counsel, as part of the notice of action on
the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division