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HQ 953441


June 11, 1993

CLA-2 CO:R:C:M 953441 RFA

CATEGORY: CLASSIFICATION

TARIFF NO.: 9028.90.00

District Director of Customs
Second & Chestnut Streets
Room 102
Philadelphia, PA 19106

RE: Protest No. 1101-93-100057; Electronic Volume Corrector; Gas meter; measuring and checking instruments for gas; heading 9026; EN 90.28

Dear District Director:

The following is our decision regarding the request for further review of Protest No. 1101-93-100057, which concerns the classification of an electronic volume corrector under the Harmonized Tariff Schedule of the United States (HTSUS). The subject merchandise was liquidated on November 27, 1992. The protest was timely filed on January 26, 1993.

FACTS:

The subject merchandise is the model 900 electronic volume corrector ("EVC") which is used with a gas meter in order to render more accurate readings. The EVC contains an integral pressure sensor which monitors gas line pressure, as well as receive measurement signals from an electronic temperature probe. A pulse encoder mounted on the already-in place rotary supply meter transmits a pulse rate proportional to the gas volume passing through it. The EVC accepts these pulses and modifies the data to adjust for varying temperature and pressure levels of the gas. The resulting output of the EVC is therefore a more accurate measurement of the total volume delivered.

The merchandise was entered under subheading 9026.80.60, HTSUS, as other instruments for measuring and checking the flow rate and pressure of gases. The entry was liquidated under subheading 9028.10.00, HTSUS, as gas supply or production meters. Classification of the merchandise under subheading 9028.90.00, HTSUS, as parts and accessories of supply meters, is also under consideration.

The subheadings under consideration are as follows:

9026.80.60: Instruments and apparatus for measuring or checking the flow, level, pressure or other variables of liquids or gases (for example, flow meters, level gauges. . .), excluding instruments and apparatus of heading . . . 9028 or 9032 . . .: [o]ther instruments and apparatus: [o]ther: [o]ther. . .

Goods classifiable under this provision have a general, column one rate of duty of 4.7 percent ad valorem.

9028.10.00 Gas, liquid or electricity supply or production meters, including calibrating meters thereof. . .: [g]as meters. . .

Goods classifiable under this provision have a general, column one rate of duty of $0.45 each + 7.0 percent ad valorem.

9028.90.00 Gas, liquid or electricity supply or production meters, including calibrating meters thereof. . .: [p]arts and accessories . . .

Goods classifiable under this provision have a general, column one rate of duty of 9.0 percent ad valorem.

ISSUE:

Whether the EVC is classifiable as an instrument to measure or check the flow of gas or as a supply gas meter or as parts and accessories of a supply gas meter under the HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

The importer argues that the merchandise should be classified under heading 9026, HTSUS, because the EVC is used to measure the volume of gases within a specific area using both a gas meter and a temperature and/or pressure sensor. However, heading 9026, HTSUS excludes instruments and apparatus of heading 9028, HTSUS. Therefore, if the EVC is provided for in Heading 9028, HTSUS, then classification under Heading 9026, HTSUS, would be precluded.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the Customs Cooperation Council's official interpretation of the HTSUS. While not legally binding, 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. EN 90.28, page 1519, states gas supply or production meters are "used to measure in volumetric units the amount of fluid passing through a pipe."

After the EVC reads the line pressure and temperature, it adjusts the input data coming in from the flow sensor. The output of the EVC is only a more accurate measurement of the volume of gas used than would normally be recorded directly from the flow turbine. Based upon the definition of supply gas meters in EN 90.28, we find that the EVC is classifiable as an accessory to supply gas meters under subheading 9028.90.00, HTSUS. Because the EVC is classifiable under heading 9028, HTSUS, it is therefore precluded from being classified under heading 9026, HTSUS.

HOLDING:

For the foregoing reasons, the EVC is classifiable under subheading 9028.90.00, HTSUS, as an accessory to gas supply meters.

Since the rate of duty under the classification of the merchandise as indicated above is more than the liquidated rate, you should deny the protest in full. A copy of this decision should be attached to Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director

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