CLA-2:CO:R:C:G 087979 JAS
District Director of Customs
110 S. Fourth St., rm. 137
Minneapolis, Minnesota 55401
RE: Slat-Flap Control Computer (SFCC); Aircraft Wing Slat/
Flap Positioning Device; Programmed Base for Electric
Control; Navigational Instrument; Automatic Regulating
or Controlling Instrument; Civil Aircraft Agreement;
8537.10.00, 8803.30.00, 9014.20.60, 9031.80.00,
9032.89.60, HTSUS
Dear Sir:
This is our decision on Application for Further Review of
Protest No. 3501-0-000096, dated April 25, 1990, filed by counsel
on behalf of Northwest Airlines, Inc., Minneapolis, Minnesota.
Additional arguments were made by NWA's counsel in a meeting at
Headquarters on February 27, 1991, and confirmed in a brief dated
March 22, 1991.
FACTS:
The Slat/Flap Control Computer (SFCC) from Germany is
described as a device used to set and monitor the wing slats and
flaps of the NWA A320 twin turbo-fan passenger aircraft. It
regulates and monitors the flow of fluid in a hydraulic actuator
which positions the slats and flaps in accordance with the
pilot's command.
In operation, when the pilot activates the flap control
lever the Command Sensor Unit sends an electronic signal
containing the positioning information to the SFCC. The SFCC
then relays the signal to the hydraulic actuator (Power Control
Unit). The PCU turns a drive shaft that moves a screw jack which
in turn mechanically positions the flaps and slats. Counsel
states that once positioned, the SFCC utilizes data generated by
feedback position pick off sensors located on the wings that
report slat/flap position to the SFCC. In the event the slats
and flaps move into an asymmetric position the SFCC will
automatically return them to the original position designated by
the pilot. - 2 -
It is stated that the SFCC interfaces with other devices on
the aircraft which flash a warning to the pilot if the slats and
flaps are positioned incorrectly. Counsel also maintains the
SFCC has pilot override capability. This allows the SFCC to
analyze information from other on-board systems monitoring speed,
angle of travel, etc. If it determines from this analysis that
an unsafe condition will result from the indicated slat/flap
position, the SFCC will override the pilot's command.
You describe the SFCC as a box that controls a hydraulic
actuator that positions the plane's slats and flaps.
Accordingly, you liquidated the entries in question under the
provision for boards, panels, consoles, and other bases for
electric control or the distribution of electricity [programmable
controllers], in subheading 8537.10.00, HTSUS.
Counsel claims that the SFCC is classifiable under the duty-
free provision for other parts of airplanes for use in civil
aircraft, in subheading 8803.30.00, Harmonized Tariff Schedule of
the United States (HTSUS). Alternatively, he proposes
classification in subheading 9032.89.60, HTSUS, automatic
regulating or controlling instruments and apparatus, in
subheading 9031.80.00, as other measuring or checking
instruments, appliances and machines, or in subheading
9014.20.60, HTSUS, other electrical instruments and appliances
for aeronautical or space navigation. The rate of duty for these
provisions under the Agreement on Trade in Civil Aircraft is
free.
ISSUE:
Whether the SFCC is a base for electric control of heading
8537, either programmed or programmable; if it is either, whether
the claimed alternative classifications, or any of them, are
relatively more specific.
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) 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 - 3 -
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.
Initially, articles of chapter 90 are precluded from
classification in heading 8537, assuming that provision applies.
Section XVI, Note 1(m), HTSUS. Therefore, if any of headings
9031, 9032 or 9014 apply, the SFCC must be classified therein.
We will discuss each of these claims in the order presented by
counsel.
Initially, we believe the SFCC is provided for in heading
8537. Goods of heading 8537 vary from small switchboards with
only a few switches, fuses, etc. to complex control panels for
large installations. These include, for example, numerical
control panels, programmed switchboards that control apparatus,
programmable controllers, and other bases for electric control or
the distribution of electricity. Therefore, heading 8537
includes both programmed and programmable bases for electric
control.
Relevant ENs under (3) at p. 1391, indicate 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. 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. The SFCC functions precisely in this manner with its
principal purpose being to control the hydraulic actuator which
positions the plane's wing slats and flaps.
The heading 9032 classification is based on two alternative
claims. The first claim is that the purpose of the SFCC is to
control the movement of a non-electric quantity (the hydraulic
fluid) through an electrical control device, the operation of
which depends on the transmission of an electrical signal which
varies according to the factor to be controlled. We disagree.
The principal purpose of the SFCC is to control or adjust the
position of the wing slats and flaps. Controlling the fluid
distribution in the hydraulic actuator is merely an intermediate
process by which this primary purpose is accomplished. - 4 -
Alternatively, counsel claims that the basic function of the SFCC
is to control the flow and pressure of air (a gas) over the
surface of the A320's wings. Pursuant to Chapter 90, Note 6,
HTSUS, instruments and apparatus of heading 9032 include those
which control the flow, level, pressure and other variables of
liquids or gases. Relevant ENs, at pp. 1533 and 1534, indicate
that such apparatus usually consists of three devices forming a
single entity: a device for measuring the variable to be
controlled, a control device - sometimes optional - which
compares the measured value with the desired value and a
starting, stopping or operating device actuated by the control
device. The ENs state further that automatically controlling
instruments and apparatus of heading 9032 are connected to an
appliance such as a pump, compressor or valve which carries out
the orders. By function and design, the SFCC controls a sequence
of mechanical movements in the wings' slats and flaps, which
proximately alter the flow and pressure of air over the wings.
However, because the SFCC neither incorporates a device for
measuring the variable (air) to be controlled nor a control
device for comparing the measured value with the desired value,
we conclude it is not within the instruments and apparatus
encompassed by heading 9032.
The 9031 claim is based on counsel's contention that the
SFCC not only positions the slats and flaps but continuously
monitors their position and repositions them if they become
asymmetrical. In addition, the SFCC is said to interface with
other navigational computers on board the aircraft by feeding
them slat/flap positions so that airspeed, rate of ascent/
descent, ailerons, etc. can be modified. Our interpretation of
the available information is that these other navigational
computers may measure, check and, if necessary, adjust the
function or variable they are designed to control utilizing data
received from the SFCC. There is no evidence that the SFCC
independently measures or checks anything.
Regarding the heading 9014 claim, the common meaning of the
terms navigate or 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 determine,
maintain or alter the plane's course. The exemplars, however,
are noninclusive. The correct positioning and maintaining of the
slats and flaps determines the plane's proper rate of ascent and
descent, and therefore relates to the plane's course or position. - 5 -
The SFCC's function of warning the pilot if the slats/flaps
become asymmetrical certainly qualifies as a navigational aid.
We conclude that the SFCC is provided for in heading 9014. As a
historical note, devices that primarily control a plane's
horizontal movements and have the capacity to correct a deviation
if the aircraft is flying at a wrong angle, have been regarded as
navigational instruments under the TSUS, provided they are not
also electric measuring, checking, analyzing or automatically
controlling instruments or apparatus. Ruling 067317, dated June
10, 1982.
HOLDING:
The Slat/Flap Control Computer (SFCC) in issue here is
described by heading 8537, HTSUS. However, because of Section
XVI, Note 1(m), HTSUS, it cannot be classified in chapter 85.
Under the authority of GRI 1, the SFCC 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