CLA-2- OT:RR:CTF:TCM H249751 TNA
Port Director, Laredo Service Port
U.S. Customs and Border Protection
P.O. Box 3130
Laredo, TX 78044-3130
RE: Application for Further Review of Protest No: 2304-13-100080; Classification of the Sensus iPERL 100CF Household Water Meters
Dear Port Director:
The following is our decision regarding Protest and Application for Further Review No. 2304-13-100080, timely filed on May 23, 2013, on behalf of Sensus, USA, (“Sensus” or “Protestant”) regarding the tariff classification of Iperl household water meters under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The subject merchandise consists of various sizes of household water meters that are all part of Protestant’s “iPERL” line of merchandise. These meters measure the flow of water through pipes and are designed to detect very low water flows as well as be durable at high flows. These meters can measure between 25 and 55 gallons per minute when water is continuously flowing, and can detect a minimum flow of between 0.03 gallons per minute and 0.11 gallons per minute.
The subject merchandise consists of integrated units that incorporate an electronic register and measuring device encased in an external housing. This measuring device is comprised of a composite alloy flowtube with externally-threaded spud ends. Magnetic flow sensors are embedded in the flow tube. The electronic, programmable register is sealed with a tempered glass cover. Direction of flow and units of measure are shown on the register display, and display in gallons, cubic feet, and cubic meters. The display also includes battery life, empty pipe and forward/reverse flow indicators. These components work together to measure the flow of water in the households in which they are used.
The merchandise was entered on June 19, 2012 under subheading 9028.30.00, HTSUS, which provides for “Gas, liquid or electricity supply or production meters, including calibrating meters thereof; parts and accessories thereof: Electricity meters.” U.S. Customs and Border Protection (“CBP”) liquidated the merchandise as entered on April 19, 2013. This protest was filed on May 23, 2013, claiming classification in subheading 9026.10.20, HTSUS, which provides for “Instruments and apparatus for measuring or checking the flow, level, pressure or other variables of liquids or gases (for example, flow meters, level gauges, manometers, heat meters), excluding instruments and apparatus of heading 9014, 9015, 9028 or 9032; parts and accessories thereof: For measuring or checking the flow or level of liquids: Electrical.”
ISSUE:
Whether the subject water meters are classified in heading 9026, HTSUS, as instruments or apparatus for measuring or checking the flow of liquids, or as liquid meters of heading 9028, HTSUS?
LAW AND ANALYSIS:
Initially, we note that this matter is protestable under 19 U.S.C. §1514(a) (2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the first entry. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)).
Further Review of Protest No. 2304-13-100080 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by CBP’s Commissioner or his designee, or by the Customs courts.
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 and, unless otherwise required, according to the remaining GRIs taken in their appropriate order.
The HTSUS provisions under consideration are the following:
9026 Instruments and apparatus for measuring or checking the flow, level, pressure or other variables of liquids or gases (for example, flow meters, level gauges, manometers, heat meters), excluding instruments and apparatus of heading 9014, 9015, 9028 or 9032; parts and accessories thereof:
9028 Gas, liquid or electricity supply or production meters, including calibrating meters thereof; parts and accessories thereof:
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The ENs to heading 9026, HTSUS, state, in pertinent part, the following:
Apart from instruments or apparatus more specifically covered by other headings of the Nomenclature… this heading covers instruments and apparatus for measuring or checking the flow, level, pressure, kinetic energy or other process variables of liquids or gases…
Measuring or checking apparatus generally incorporates an element sensitive to variations in the quantity to be measured (e.g., Bourdon tube, diaphragm, bellows, semiconductors) moving a needle or a pointer. In some devices the variations are converted into electrical signals…
(I) APPARATUS FOR MEASURING OR CHECKING THE FLOW OR RATE OF FLOW OF LIQUIDS OR GASES
(A) Flowmeters. These indicate the rate of flow (in volume or weight per unit of time) and are used for measurement of flow both through open channels (rivers, waterways, etc.) and through closed conduits (piping, etc.).
Some flowmeters use the principle of the fluid meters of heading 90.28 (turbine-type, piston-type, etc.), but the majority are based on the principle of differential pressure. These include:
(1) Differential pressure (fixed aperture) flowmeters. These comprise essentially:
(i) a primary device (e.g., Pitot or Venturi tube, simple diaphragm, orifice plates, shaped nozzle) to set up a differential pressure, and
(ii) a differential pressure gauge (float, diaphragm, differential pressure, oscillating ring balance or flow transmitters, etc., type).
(2) Variable area (variable aperture) flowmeters. These usually consist of a graduated cone-shaped tube containing a heavy float which is carried along by the current until the flow of the liquid between the float and the wall reaches equilibrium. For high pressure liquids, use is made either of magnetic flowmeters (the position of an iron float in a non-magnetic tube being shown externally by a magnet), or of valve flowmeters (an iris diaphragm fitted inside the tube being connected in parallel with a small flowmeter).
(3) Flowmeters which operate by using magnetic fields, ultrasound or heat.
This heading excludes:…
(b) Apparatus which merely indicate the total amount of liquid delivered over a period, which are classified as supply meters in heading 90.28….
The ENs to heading 9028, HTSUS, state, in pertinent part, the following:
These meters are generally fitted with a device driven at a speed proportional to the rate of fluid flow or to the electrical quantity being measured. They are often fitted in a bypass or shunt off the main or connected to measuring transformers, so that only part of the flow passes through them, but are calibrated so as to indicate the total quantity passing through the service pipes or through the main.
Gas, liquid or electricity supply or production meters fall in this heading whether or not fitted with a clockwork recording device, or with a simple mechanical or electrical device for bringing controlling, signalling, etc., appliances into action.
(I) GAS OR LIQUID SUPPLY OR PRODUCTION METERS
These meters are used to measure in volumetric units the amount of fluid passing through a pipe. Flowmeters, which measure rate of flow are excluded (heading 90.26).
This heading includes household supply meters, plant production or supply meters, and standard meters (for checking the accuracy of ordinary meters). In addition to simple meters, the heading also includes special meters such as maximum, prepayment, price-calculating, etc., meters.
Supply or production meters consist essentially of the measuring device (turbine, piston, diaphragm, etc.), the mechanism for regulating the admission of fluid (generally slide valves), the transmission (endless screw, camshaft, gears or other systems), and a recorder or an indicator (pointer or drum type) or both….
(B) Liquid supply or production meters (cold or hot water, mineral oil, alcohol, beer, wine, milk, etc.), but not including pumps for liquids (even if fitted with measuring devices) of heading 84.13.
At the heading level, we must first determine whether the subject merchandise is a meter of heading 9028, HTSUS. If it is a meter of heading 9028, HTSUS, then it is not an instruments or apparatus for measuring or checking the flow, level, pressure or other variables of liquids or gases of heading 9026, HTSUS, as the terms of heading 9026, HTSUS, exclude merchandise of heading 9028, HTSUS. See heading 9026, HTSUS.
Heading 9028, HTSUS, provides for “gas, liquid or electricity supply or production meters, including calibrating meters thereof; parts and accessories thereof.” The meters of this heading are generally fitted with a device driven at a speed proportional to the rate of fluid flow or to the electrical quantity being measured. See EN 90.28. They are often fitted in a bypass or shunt off the main or connected to measuring transformers, so that only part of the flow passes through them, but are calibrated so as to indicate the total quantity passing through the service pipes or through the main. See EN 90.28. Furthermore, the liquid supply meters of heading 9028, HTSUS, are used to measure the amount of fluid passing through a pipe in volumetric units. In the present case, the subject merchandise measures water flow in gallons, cubic meters or cubic feet- all volumetric units. The subject merchandise also contains an electric meter that measures the amount of water being used during a given time by way of a magnetic field that measures the amount of water that flows through pipes to specific households. These factors support its classification in heading 9028, HTSUS.
In addition, liquid supply meters of heading 9028, HTSUS, are a category of merchandise that includes household supply meters. See EN 90.28. The subject merchandise consists of water meters that are used in households to measure the supply of water. Specifically, Protestant’s “iPERL” line of water meters is used in many homes across the country. As a result, many municipalities offer instructions as to their use. “Your water meter is an accurate and dependable water-measuring device used to register all the water used in your home or building,” says one set of instructions. See www.poway.org/Index.aspx? page=471. Similar instructions may be found elsewhere. See, e.g., www.olivenhain. com/index.php?option=com_content&view=article&id=159 (“your water meter records the amount of water used on your property in the same manner as an odemeter records the number of miles driven in your automobile… the difference between the current meter read and last month’s meter read is your consumption for the given billing period.”) These documents show that the subject merchandise measures households’ water consumption per billing cycle, not the water’s flow. For all of these reasons, the subject merchandise meets the terms of heading 9028, HTSUS, and will be classified there.
We acknowledge that protestant argues for classification in heading 9026, HTSUS. However, because the subject merchandise is classified in heading 9028, HTSUS, it is precluded from classification in heading 9026, HTSUS.
HOLDING:
By application of GRI 1, the subject “iPERL” household water meters are classified in heading 9028, HTSUS. They are specifically provided for under subheading 9028.20.00, HTSUS, which provides for: “Gas, liquid or electricity supply or production meters, including calibrating meters thereof; parts and accessories thereof: Liquid meters.” The general, column one duty rate is 16¢ each + 2.5% ad valorem.
Since the rate of duty under the classification indicated above is more than the liquidated rate, 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 International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web 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