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HQ 955080


APRIL 6, 1994

CLA-2:CO:R:C:M 955080 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8538.90.00

District Director of Customs
110 S. Fourth Street, Rm. 137
Minneapolis, MN 55401

RE: PRD 3501-92-100139; Throttle Control Unit (TCU); Device for Controlling Fuel/Air Mixture Entering Aircraft Engine; Control Device, Controller, Heading 8537; Parts of Airplanes or Helicopters, Subheading 8803.30.00, Civil Aircraft Agreement (CAA); Section XVI, Note 2, HQ 953462, HQ 954972, HQ 954992

Dear Sir:

This is our decision on Protest No. 3501-92-100139, filed by counsel for Northwest Airlines, Inc., against your classification of the Throttle Control Unit (TCU). This apparatus from France enables the pilot to manually control thrust in the engine of the Airbus A-320. The entry under protest was liquidated on March 20, 1992, and this protest timely filed on May 18, 1992.

FACTS:

Submitted literature identifies the Throttle Control Unit (TCU), part #321400M01, as a device whose function is to transform a mechanical movement into an electrical signal. In operation, the pilot manually moves the throttle lever which is linked to the TCU. The TCU converts this mechanical movement to an electrical signal which it sends to the Engine Control Unit (ECU). Through this signal the ECU controls the amount of power or thrust each engine generates. The ECU is not further described. The throttle lever has six settings, each of which provides for a different amount of power. By adjusting these settings, the pilot, through the TCU, can increase power, idle the engines, or reverse engine thrust to stop the A-320.

The TCU was entered under the duty-free provision for other parts of airplanes or helicopters, in subheading 8803.30.00, Harmonized Tariff Schedule of the United States (HTSUS). Alternatively, counsel proposes classification free of duty in subheading 8411.99.10, HTSUS, as parts of turbojets and other gas - 2 -
turbines; or, on the theory that the pilot's ability to regulate engine thrust relates to the plane's rate of ascent and descent, as an instrument for aeronautical or space navigation, in subheading 9014.20.60, HTSUS, free of duty under the CAA.

Your office determined that the TCU was a device for controlling the power output of the A-320's engines, and liquidated the entry under subheading 8537.10.00, HTSUS, as a panel for electric control or the distribution of electricity.

The provisions under consideration are as follows:

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

8411.99 Parts: Other:

8411.99.10 Cast-iron parts, not advanced beyond cleaning ...Free

8537 Boards, panels, consoles, desks, cabinets for electric control or the distribution of electricity:

8537.10.00 For a voltage not exceeding 1,000 V ...5.3 percent

8538 Parts suitable for use solely or principally with the apparatus of heading 8535, 8536 or 8537:

8538.90.00 Other: Other...5.3 percent

8803 Parts of goods of heading 8801 or 8802:

8803.30.00 Other parts of airplanes or helicopters...Free

9014 Direction finding compasses: Other navigational instruments and appliances; parts and accessories thereof: - 3 -

9014.20 Instruments and appliances for aeronautical or space navigation:

9014.20.60 Other: Electrical...Free under CAA

ISSUE:

Whether the TCU is provided for in heading 9014; if not, whether it is a control device of heading 8537 or a part thereof.

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.

As to the heading 8803 classification, the expressions "parts" and "parts and accessories" do not apply to electrical machinery or equipment of chapter 85 or to articles of chapter 90. Section XVII, Notes 2(f) and (g). Therefore, if any of the alternative provisions are found to apply, the TCU cannot be classified in heading 8803. In addition, if the TCU is provided for in heading 9014, it is precluded from chapter 85. Section XVI, Note 1(m), HTSUS. Moreover, goods that are identifiable as parts of machines of chapters 84 or 85 are to be classified according to Section XVI, Note 2, HTSUS.

The heading 9014 claim is addressed in HQ 954972, a decision on the A-320's Brake and Steering Control Unit (BSCU). The contents of that decision are incorporated by reference herein. As stated in HQ 954972, the terms navigate and navigation connote 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. In our opinion, the TCU can be said to be a navigation instrument or a part of such instruments only in the strictest and most literal sense. Tariff terms do not include everything within their literal meaning. United States v. Andrew Fisher Cycle Co., Inc., 57 CCPA 102, C.A.D. 986 (1970), and cases cited. We cite HQ 953462, dated April 21, 1993, regarding the A-320's Spoiler and Elevator Control Computer (SEC), for purposes of distinction. HQ 953462 held the SEC to be instruments and apparatus of heading 9014. That decision is incorporated by reference herein. - 4 -

The two remaining provisions are in section XVI. However, the TCU is not a cast-iron part of the type encompassed by subheading 8411.99.10, HTSUS. Regarding the last claim, control devices of heading 8537, whether programmable or pre-programmed, function primarily to control output devices, by reading input signals from pushbuttons, contacts or switches and deciding what the outputs should be, based on the user's program logic. Controllers then convert this data to an output signal which it sends to output devices such as valves, solenoids, etc. The information available to us indicates that it is the Engine Control Unit (ECU), and not the Throttle Control Unit (TCU), which controls the performance of the A-320's engines by a function appropriate to apparatus of heading 8537.

The TCU is the sole means by which the pilot can access the ECU, the latter being unable to perform its function without input from the pilot. From the available information, we conclude that the TCU in issue has a functional interrelationship with the ECU so as to be considered an integral, constituent and component part necessary to the completion and proper functioning of the ECU. The TCU therefore qualifies as a part for tariff purposes. Clipper Belt Lacer Co., Inc. v. United States, Slip Op. 90-22, dated March 13, 1990. The literature and descriptions lead to a reasonable conclusion that the TCU is principally, if not solely used with the ECU. Section XVI, Note 2(b), HTSUS.

HOLDING:

Under the authority of GRI 1, the TCU, designated part #321400M01, is provided for in heading 8438. It is classifiable in subheading 8538.90.00, HTSUS, as other parts suitable for use solely or principally with the apparatus of heading 8535, 8536 or 8537.

Since the rate of duty under this provision is the same as the liquidated rate, the protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you should mail this decision, together with the Customs 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 of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in - 5 -

ACS and to the public via the Diskette Subscription Service, Lexis, the Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division


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