• HQ H224997
• Aug 30, 2019

• Type : Classification • HTSUS : 8481.80.90
•  Related:   958548; 952880; 956084; L87153; K89109; H287475; N104601; H028098; N017613   

CLA-2 OT:RR:CTF:EMAIN H224997 PF

Port Director
St. Albans Service Port
U.S. Customs and Border Protection
50 S. Main Street
St. Albans, VT 05478

Re: Protest and Application for Further Review No: 0201-2012-100008; Classification of a fuel control unit

Dear Port Director:

The following is our decision as to Protest and Application for Further Review No. 0201-2012-100008, which was filed on April 11, 2012 on behalf of Pratt & Whitney Component Solutions, Inc. (“protestant”). The protest pertains to the classification of a fuel control unit (“FCU”) under the Harmonized Tariff Schedule of the United States (“HTSUS”).

The subject FCU was entered by protestant on April 3, 2011 and July 27, 2011 under subheading 9026.10.60, HTSUS, which provides, inter alia, for “Instruments and apparatus for measuring or checking the flow, level, pressure, or other variables of liquids or gases [.]” On October 14, 2011, U.S. Customs and Border Protection (“CBP”) at the Port of St. Albans liquidated the entries under subheading 8481.80.90, HTSUS, which provides for “Taps, cocks, valves and similar appliances, for pipes, boiler shells, tanks, vats or the like, including pressure-reducing valves and thermostatically controlled valves; parts thereof: Other appliances: Other.” On April 11, 2012, protestant filed a protest and AFR regarding the tariff classification of the subject FCU claiming that the correct classification of the subject merchandise should be in heading 9032, HTSUS, which provides for “Automatic regulating or controlling instruments and apparatus; parts and accessories thereof:.” In the alternative, protestant contends that the correct classification of the subject FCU should be in heading 8411, HTSUS, which provides for “Turbojets, turbopropellers and other gas turbines, and parts thereof:.” In reaching the determination set forth below, we have taken into consideration the protest, emails from protestant submitted on September 30, 2016, information provided by protestant during a November 5, 2018 meeting, and a supplemental submission dated February 19, 2019.

FACTS: The subject FCU is an appliance that controls the flow of fuel to a turboprop in response to the manipulation of a throttle by a pilot. The FCU essentially relies on a throttle valve, a centrifugal governor, and a bellows assembly to control the flow of fuel to the engine. The valves in an FCU respond to changes in engine variables, such as power level position, engine revolutions per minute (“r.p.m.”), or compressor discharge pressure. These variables affect the amount of thrust that an engine produces for a given fuel flow. By sensing these parameters, the FCU can adjust fuel flow as needed.

There are two types of FCUs at issue. The first FCU is purely hydro-mechanical (“HMU”) and the second FCU is primarily electronic with a back-up hydro-mechanical mode (“HMU/Electronic”). Both FCUs perform the same function of calculating and controlling the amount of fuel flowing to an aircraft engine based on the pilot’s power settings and various engine inputs. In addition, the HMU/Electronic FCU receives a lever input that is connected to the pilot’s power lever in both modes of operation.

The protestant describes the operation of the HMU FCU as follows: The pilot changes the throttle position on the aircraft, which in turn engages the power lever on the FCU. The power lever then increases or decreases the tension in a spring on the [g]overnor exerting pressure on the [g]overnor’s lever. In addition, the [g]overnor’s flyweight controllers exert an opposing force on the lever based on the engine’s r.p.m. The effect of this is that the [g]overnor determines how quickly or slowly to increase or decrease the fuel flow to the engine to meet the pilot’s request. . . . Once the [g]overnor determines the amount of fuel required to maintain the desired r.p.m, it creates a variance in air pressure that the [b]ellows senses. The [b]ellows compares this change in pressure and triggers mechanical adjustments in the Fuel Valve, allowing release of fuel to the engine.

The protestant describes the operation of the HMU/Electronic FCU as follows: This FCU can operate in two modes to control the flow of fuel to the aircraft engine: an electrical mode where it receives electrical inputs from an Electronic Engine Control Unit and a hydromechanical back-up mode where it analyzes and computes a ratio of fuel flow to compressor discharge pressure (wf/p3). In the hydromechanical back-up mode, the FCU analyzes and reacts to changes in compressor delivery air pressure and adjusts and directs the fuel flow to maintain the desired wf/p3 ratio, as input via the throttle position. With respect to the HMU FCU, a maintenance manual provided by protestant provides that “fuel flow is established by a metering valve and bypass valve system.” The metering valve regulates the flow of fuel by varying the orifice area. The orifice area of the metering valve is changed by valve movement to meet specific engine requirements. Moreover, a torque tube is positioned during assembly to provide a force in a direction tending to close the metering valve while the governor bellows act against this force to open the valve. During acceleration, the bellows cause the metering valve to move in an opening direction. During deceleration, the bellows will travel to reduce the metering valve opening and moves the metering valve to its minimum flow stop.

With regard to the HMU/Electronic FCU, the descriptive literature provided by protestant notes that the FCU is comprised of valves, including a power lever valve, pressure regulating valve, minimum pressure valve, pressure relief and ejector valve. The FCU receives fuel from the fuel pump and excess fuel is returned to the supply tank by the pressure relief and ejector valve. Fuel flows in three directions from the ejector valve: to the pressure regulating valve, power lever valve, and to the Pc sensor and servo. The pressure regulating valve maintains a predetermined pressure differential between the control valves and orifices within the HMU. The movement of the power level valve varies the size of the windows and determines the flow rate through the valve. In the event of an internal fault or at the option of the pilot, the HMU/Electronic FCU will switch to complete manual mode and operate under hydromechanical mode. In both modes, the HMU/Electrical FCU receives a lever input that is connected to the pilot’s power lever to regulate the fuel flow.

ISSUE:

Whether the FCU is classified in heading 8481, HTSUS, as a valve, heading 8411, HTSUS, as a part of a turbojet, or heading 9032, HTSUS, as an automatic regulating or controlling instrument and apparatus.

LAW AND ANALYSIS:

This matter is protestable under 19 U.S.C. § 1514(a)(2), as a matter on classification. The protest was timely filed, within 180 days of liquidation for the involved entry (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)). Further Review of Protest No. 0201-2012-100008 is properly accorded to protestant pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of CBP or his designee, or with a decision made by CBP with respect to the same or substantially similar merchandise.

Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (“GRIs”) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.

GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.

The 2011 HTSUS provisions under consideration are as follows:

8411 Turbojets, turbopropellers and other gas turbines, and parts thereof:

8481 Taps, cocks, valves and similar appliances, for pipes, boiler shells, tanks, vats or the like, including pressure-reducing valves and thermostatically controlled valves; parts thereof:

9032 Automatic regulating or controlling instruments and apparatus; parts and accessories thereof:

Note 1(m), to Section XVI, HTSUS, which includes Chapter 84, HTSUS, states that Section XVI, HTSUS, does not cover articles of Chapter 90, HTSUS. Note 2 to Section XVI, HTSUS, further provides that:

Subject to note 1 to this section, note 1 to chapter 84 and to note 1 to chapter 85, parts of machines (not being parts of the articles of heading 8484, 8544, 8545, 8546 or 8547) are to be classified according to the following rules:

Parts which are goods included in any of the headings of chapter 84 or 85 (other than headings 8409, 8431, 8448, 8466, 8473, 8487, 8503, 8522, 8529, 8538 and 8548) are in all cases to be classified in their respective headings;

Other parts, if suitable for use solely or principally with a particular kind of machine, or with a number of machines of the same heading (including a machine of heading 8479 or 8543) are to be classified with the machines of that kind or in heading 8409, 8431, 8448, 8466, 8473, 8503, 8522, 8529 or 8538 as appropriate. However, parts which are equally suitable for use principally with the goods of headings 8517 and 8525 to 8528 are to be classified in heading 8517;

Note 1(g) to Chapter 90 provides, in pertinent part, that this chapter does not include valves or other appliances of heading 8481, HTSUS. Note 2 to Chapter 90, HTSUS, provides as follows:

Subject to Note 1 above, parts and accessories for machines, apparatus, instruments or articles of this chapter are to be classified according to the following rules:

Parts and accessories which are goods included in any of the headings of this chapter or of chapter 84, 85 or 91 (other than heading 8487, 8548 or 9033) are in all cases to be classified in their respective headings;

Other parts and accessories, if suitable for use solely or principally with a particular kind of machine, instrument or apparatus, or with a number of machines, instruments or apparatus of heading 9010, 9013 or 9031) are to be classified with the machines, instruments or apparatus of that kind.

Note 7 to Chapter 90, HTSUS, provides the following:

7. Heading 9032 applies only to:

Instruments and apparatus for automatically controlling the flow, level, pressure or other variables of liquids or gases, or for automatically controlling temperature, whether or not their operation depends on an electrical phenomenon which varies according to the factor to be automatically controlled, which are designed to bring this factor to, and maintain it at, a desired value, stabilized against disturbances, by constantly or periodically measuring its actual value; and

The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, 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. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The ENs to Section XVI, Note 2, HTSUS provide that: [The general rule that parts are classified under the same heading as goods for which they are solely or principally used] do not apply to parts which in themselves constitute an article covered by a heading of this Section (other than headings 84.87 and 85.48); these are in all cases classified in their own appropriate heading even if specially designed to work as part of a specific machine. This applies in particular to: . . . .

(4) Taps, cocks, valves, etc. (heading 84.81).

The relevant ENs to heading 8481, HTSUS, provide, in pertinent part:

This heading covers taps, cocks, valves and similar appliances, used on or in pipes, tanks, vats or the like to regulate the flow (for supply, discharge, etc.), of fluids (liquid, viscous or gaseous), or, in certain cases, of solids (e.g., sand). The heading includes such devices designed to regulate the pressure or the flow velocity of a liquid or a gas.   The appliances regulate the flow by opening or closing an aperture (e.g., gate, disc, ball, plug, needle or diaphragm). They may be operated by hand (by means of a key, wheel, press button, etc.), or by a motor, solenoid, clock movement, etc., or by an automatic device such as a spring, counterweight, float lever, thermostatic element or pressure capsule . . . .

Taps, cocks, valves, etc., remain in this heading even if specialized for use on a particular machine or apparatus, or on a vehicle or aircraft.

EN 90.32 further clarifies the definition of “automatic control apparatus,” within the meaning of Note 7(a) to Chapter 90, as follows:

(I) INSTRUMENTS AND APPARATUS FOR AUTOMATICALLY CONTROLLING THE FLOW, LEVEL, PRESSURE OR OTHER VARIABLES OF LIQUIDS OR GASES, OR FOR AUTOMATICALLY CONTROLLING TEMPERATURE

Automatic control apparatus for liquids or gases and apparatus for automatically controlling temperature form part of complete automatic control systems and consist essentially of the following devices:

A device for measuring the variable to be controlled (pressure or level in a tank, temperature in a room, etc.); in some cases, a simple device which is sensitive to changes in the variable (metal or bimetal rod, chamber or bellows containing an expanding liquid, float, etc.) may be used instead of a measuring device.

A control device which compares the measured value with the desired value and actuates the device described in (C) below accordingly.

A starting, stopping or operating device.

Apparatus for automatically controlling liquids or gases or temperature, within the meaning of Note 7 (a) to this Chapter, consists of these three devices forming a single entity or in accordance with Note 3 to this Chapter, a functional unit.

Protestant asserts that the subject FCU is classified in heading 9032, HTSUS. However, since Note 1(g) to Chapter 90, HTSUS, specifically excludes valves or other appliances from Chapter 90, our analysis of the classification of the FCU begins with evaluating whether the subject FCU is a valve of heading 8481, HTSUS.

The subject FCU is a valve and is specifically provided for in Heading 8481, HTSUS, which provides for, inter alia, taps, cocks, valves, similar appliances, including pressure reducing valves. Heading 8481, HTSUS, provides eo nomine for valves and similar appliances. EN to 84.81 specifies that the heading covers devices designed to regulate the pressure or the flow velocity of a liquid or gas.

In this case, the FCU incorporates valves that regulate fuel flow. The FCU opens and closes in response to the pilot’s manipulation of a throttle. The valves in the FCU respond to changes in engine variables, such as compressor turbine speed, power level angle, fuel lever, or compressor discharge pressure. These variables affect the amount of thrust that an engine produces for a given fuel flow. By sensing these parameters, the FCU can adjust fuel flow as needed.

With respect to the HMU FCU, a maintenance manual provided by protestant provides that “fuel flow is established by a metering valve and bypass valve system.” The metering valve regulates the flow of fuel by varying the orifice area. The orifice area of the metering valve is changed by valve movement to meet specific engine requirements. Moreover, a torque tube is positioned during assembly to provide a force in a direction tending to close the metering valve while the governor bellows act against this force to open the valve. During acceleration, the bellows cause the metering valve to move in an opening direction. During deceleration, the bellows will travel to reduce the metering valve opening and moves the metering valve to its minimum flow stop.

Like the HMU FCU, the HMU/Electrical FCU is comprised of valves, including a power lever valve, pressure regulating valve, minimum pressure valve, pressure relief and ejector valve. The FCU receives fuel from the fuel pump and excess fuel is returned to the supply tank by the pressure relief and ejector valve. Fuel flows in three directions from the ejector valve: to the pressure regulating valve, power lever valve, and to the Pc sensor and servo. The pressure regulating valve maintains a predetermined pressure differential between the control valves and orifices within the HMU. The movement of the power level valve varies the size of the windows and determines the flow rate through the valve. In the event of an internal fault or at the option of the pilot, the HMU/Electrical FCU will switch to complete manual mode and operate under hydromechanical mode. In both modes, the HMU/Electrical FCU receive a lever input that is connected to the pilot’s power lever to regulate the fuel flow.

In summary, the FCU regulates fuel flow by varying the valve openings in response to engine variables in order to deliver fuel to the engine. Heading 8481, HTSUS, specifically provides for devices designed to regulate the pressure or the flow velocity of a liquid or a gas. Therefore, the subject FCU performs the function of a valve and is provided for in heading 8481, HTSUS.

Our determination is consistent with Headquarters Ruling (“HQ”) 958548, dated February 9, 1996, where CBP determined that a fuel flow regulator, which consisted of a fuel control unit and a pressure ratio control unit, was a valve of heading 8481, HTSUS. The fuel control unit in HQ 958548 contained a pressure-sensitive capsule that metered the fuel supply in order to maintain engine power at desired thrust. In addition, the fuel flow regulator in HQ 958548 used engine pressure variables to regulate the flow velocity of the fuel from the fuel pump into the engine. CBP determined that the fuel flow regulator performed the function of a valve of heading 8481, HTSUS. See also HQ 952880, dated February 8, 1993 (finding that a control valve that controlled cabin pressure and whose passageways opened and closed in direct correlation to line pressure was a valve of heading 8481, HTSUS) and HQ 956084, dated July 27, 1994 (holding that an electric motor-actuated plug valve that regulated the flow of hydraulic fluid in a power transmission system and a pressure regulating valve that controlled fluid pressure in a hydraulic system were covered by heading 8481, HTSUS). We also note that since the FCU is an article of heading 8481, HTSUS, it is excluded from Chapter 90 by the application of Note 1(g) to Chapter 90.

Protestant also contends that the subject FCU is a “part” of heading 8411, HTSUS, which provides for “Turbojets, turbopropellers, and other gas turbines, and parts thereof.” However, the subject FCU is excluded from heading 8411, HTSUS, by application of Note 2(a) to Section XVI, HTSUS.

Note 2(a) to Section XVI, HTSUS, provides that parts which are also goods, are in all cases to be classified in their own respective heading. As the ENs to Section XVI explain, the rules governing parts suitable solely or principally with a particular machine or apparatus are inapplicable where a good is covered by a heading of this Section. Even where an article is designed to work solely or principally as a part of a machine, a provision for parts does not prevail over a specific provision for such parts. See Nidec Corp. v. United States, 861 F. Supp. 136 (Ct. Int’l. Trade 1994), aff'd, 68 F.3d 1333 (Fed. Cir. 1995) (holding that a part, which in itself constitutes an article covered by a heading of Section XVI, HTSUS, is in all cases classified as such even though it also could be classified as part of a specific machine).

Applying Note 2(a) to Section XVI, HTSUS, a good that is described as a good of a heading 8411, HTSUS, would be classified in that heading and not as a part of subheading of heading 8411, HTSUS, providing for parts. In the present case, it is undisputed that the subject FCU is not a turbo-jet, turbo-propeller, or an “other” gas turbine. Therefore, since the subject FCU is not described by heading 8411, HTSUS, and is described by heading 8481, HTSUS, it cannot be classified in heading 8411, HTSUS, in accordance with Note 2(a) to Section XVI, HTSUS.

The FCU is also not covered by heading 9032, HTSUS. Heading 9032, HTSUS, provides for “Automatic regulating or controlling instruments and apparatus; parts and accessories thereof.” Note 7(a) to Chapter 90, HTSUS, states that heading 9032, HTSUS, is limited to instruments and apparatus for controlling certain factors such as flow, level, pressure, temperature, or other variables of liquids or gases. See Belimo Automation A.G. v. United States, 774 F.3d 1362, 1364-65 (Fed. Cir. 2013); see also HQ H287475, dated December 18, 2018.

Protestant maintains that the FCU meets the terms of Note 7(a) to Chapter 90, HTSUS because the FCU automatically controls the amount of fuel flowing to an aircraft in order to maintain a desired engine r.p.m and senses and monitors engine speed. In addition, the protestant states that “based on input from the pilot’s throttle, requesting a specific engine speed, and the FCU’s analysis of and reaction to changes in r.p.m’s and compressor delivery air pressure, the FCU directs and adjusts the fuel flow to the engine to maintain the desired r.p.m.” In its supplemental submission, the protestant contends that the FCU controls the flow of gas (air) that it maintains against changes in air pressure and altitude.

The subject FCU does not allow a user to set a variable (such as gas flow or fuel flow) at a desired value and then stabilize it against disturbances. Rather, the FCU reacts to operational parameters of the engine and the pilot’s action. The pilot manually manipulates the throttle position, which in turn sets the rate of fuel flow to the turboprop at any given instant. Based on this reaction, the valve opens and closes, releasing fuel to maintain the necessary r.p.m. The centrifugal governor and bellows assist in setting the throttle valve in response to the pilot’s manipulation of the throttle. The fact that the FCU receives inputs from the pilot and inputs for engine speed, fuel and combustor pressure, does not change the function of the FCU.

In Belimo Automation A.G., 35 I.T.R.D. (BNA) 2319, Slip Op. 13-144 (Ct. Int’l Trade Nov. 26, 2013), aff’d 774 774 F.3d 1362, the Court of International Trade (“CIT”) evaluated whether a device consisting of an electric motor, gears, and printed circuit boards that was principally used in heating, ventilating, and air conditioning systems within buildings was covered by heading 9032, HTSUS. See Slip Op. 13-144, at *15-23. The CIT found that the term “factor” as used in Chapter 90, Note 7(a) referred to a variable of liquid, gas, pressure or temperature and not to other variables, such as damper or valve position. See id. at *19-23. The CIT noted that the device received a signal, which it interpreted to determine a setting for the damper or valve. See id. at *21. Since the device in Belimo Automation A.G., did not measure a liquid, gas or temperature, the CIT found that it was not covered by heading 9032, HTSUS. See id. at *20-22.

The CIT further determined that at no point did the subject device measure the variable to be controlled (such as the temperature, flow, pressure or otherwise) or make adjustments as a result of comparing such external measurements to the desired temperature, flow, pressure or otherwise. See id. at *22. The Court of Appeals for the Federal Circuit, which affirmed Belimo Automation A.G., stated that the variables to be automatically controlled pursuant to heading 9032, were limited to “the flow, level, pressure or other variables of liquids or gases, as well as temperature.” See 774 F.3d at 1364-65. By contrast, variables such as a motor winding position or any other electrical phenomenon would not be considered variables of heading 9032, HTSUS. See id. at 1365.

In the present case, the valves in the FCU respond to changes in engine variables, such as power lever position, r.p.m, or compressor discharge pressure. By sensing these variables, the FCU can adjust fuel flow as needed. However, the FCU does not measure a particular variable for the purpose of bringing that variable to a desired value. Rather, the FCU receives multiple variables (power lever position, r.p.m., compressor discharge pressure) for the purpose of responding to a different variable (fuel flow). The FCU does not make adjustments as a result of comparing such external measurements to the desired variable. Therefore and in accordance with Belimo Automation A.G., the FCU does not meet the terms of Note 7(a) to heading 9032, HTSUS.

In Northwest Airlines Inc. v. United States, the CIT found that a Braking and Steering Control Unit (“BSCU”) of an Airbus aircraft was not a measuring instrument of heading 9031, HTSUS. See 17 F. Supp. 2d 1008 (Ct. Int’l Trade 1998). The BSCU provided specific, detailed instructions to the brakes of an aircraft to carry out the “pilot commands,” which were “transmitted electronically from the cockpit to the BSCU,” that established when and how hard braking would be effected. See id. at 1011. Unlike the exclusively electronic BSCU in Northwest Airlines Inc., the subject FCU has very substantial mechanisms of valves to actually change the flow. See id.

The CIT further explained in Applied Biosystems v. United States, that “[c]ontrollers are therefore conceptually distinct from the equipment they control.” 715 F. Supp. 2d. 1327, 1335 (Ct. Int’l Trade 2010). Here, the control, i.e., the changing of the flow as decided by the pilot, is carried out by the very substantial mechanisms of valves. The CIT further noted that “[t]he Explanatory Notes support the conclusion that HTSUS heading 9032 refers to the apparatus that determines and issues directions but not to the complementary apparatus that carries out those instructions.” Id. Moreover, in NY N104601, dated June 4, 2010, CBP evaluated whether a vehicle stability control actuator assembly (“VSC”) was covered by heading 9032, HTSUS. The VSC, which incorporated an electronic control unit (“ECU”), was designed to be used in vehicles to improve driving stability by detecting and minimizing skids. The ECU’s function was to determine the proper level of brake fluid pressure based on a variety of factors. CBP determined that while the VSC received information, including measurements of speed of each wheel, engine force, g-force, steering angle from external sensors, which were not part of the device, the VSC’s purpose was not to compare the measured factors to the desired level and maintain them at that level, stabilized against disturbances. CBP found that heading 9032, HTSUS, did not include items, which gave instructions to optimize a function or that carried out instructions. In this case, the FCU determines the optimal fuel level based on the position of the throttle. Since the function of determining optimal fuel level is not covered by heading 9032, HTSUS, the FCU cannot be classified in heading 9032, HTSUS.

Protestant relies on HQ H028098, dated January 26, 2010, to support the FCU’s classification in heading 9032, HTSUS. In HQ H028098, CBP classified a Mass Flow Controller (“MFC”) that operated automatically and was a closed-loop device that set, measured, and controlled the flow of gases or liquids, in heading, 9032, HTSUS. The MFC in HQ H028098 was a much more sophisticated device than an ordinary flow meter since it took into account the molecular weights of gases. The MFC “analyzed the gas flow,” thereby containing features that were beyond the scope of heading 8481, HTSUS. In addition, the output of the MFC was directly connected to a valve and there was no ongoing control by a pilot or anyone else. The FCU does not rise to the level of functional complexity associated with the MFC.

In addition, Protestant maintains that the devices in NY N017613, dated October 22, 2007, NY L87153, dated September 29, 2005, and NY K89109, dated October 12, 2004 are similar to the subject FCU. In NY N017613, CBP found that an APECS 500 Single Speed Engine Controller, which was a programmable controller and could send electronic signals to a fuel control lever to maintain fixed engine r.p.m., was classified under heading 9032, HTSUS. The subject APECS 500 Single Speed Engine Controller in NY N017613 received input from sensors and sent electrical signals to actuators to adjust engine speed and other parameters. In NY L87153, the device at issue was an Integrated Speed Control, which could mechanically move the throttle on a gas engine by using torque that it produced from an electrical current via a power source. The Integrated Speed Control device inputted electrical pulses and determined the actual engine RPMs and compared that information to the desired speed setting. CBP found that the Integrated Speed Control device was covered by heading 9032, HTSUS. Moreover, in NY K89109, CBP classified an electrically powered governor (“EPG”) system, which compared the speed of the engine with the desired speed or load and set the actuator position to correct discrepancies, in heading 9032, HTSUS. CBP found that the EPG was designed for precise speed control of diesel, gas, gasoline engines, and gas turbines. The rulings cited by protestant are distinguishable because the articles found to be classifiable in heading 9032, HTSUS, operated automatically and none of the articles were under constant manual control by a pilot or any other user. We therefore remain of the view that the FCU cannot be classified under heading 9032, HTSUS.

HOLDING:

By application of GRIs 1 and 6, the subject FCU is classified in heading 8481, specifically subheading 8481.80.90 of the 2011, HTSUS, which provides for: “Taps, cocks, valves and similar appliances, for pipes, boiler shells, tanks, vats or the like, including pressure-reducing valves and thermostatically controlled valves; parts thereof: Other appliances: Other.” The 2011 general column one, rate of duty was 2% ad valorem.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.

You are instructed to DENY the Protest.

In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP 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 Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP website at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.


Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division