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HQ 953462
APRIL 21, 1993
CLA-2:CO:R:C:M 953462 JAS
CATEGORY: Classification TARIFF NO.: 9014.20.60
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


 
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