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HQ 962847




OCTOBER 15, 1999

CLA-2 RR:CR:GC 962847 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9014.20.40

Port Director of Customs
P.O. Box 17423
Washington, D.C. 20041

RE: PRD 5401-99-100019; Flight Computer for Satellite Launch Vehicle

Dear Port Director:

This is our decision on Protest 5401-99-100019, filed against your classification under the Harmonized Tariff Schedule of the United States (HTSUS), of a device that provides navigational guidance and control for a satellite launch vehicle. The entries were liquidated on February 5 and March 12, 1999, and this protest timely filed on April 30, 1999.

FACTS:

The device under protest is the Expendable Launch Vehicle Flight Computer (ELVFC), for use with a booster rocket which serves as the launch vehicle for a suborbital satellite. Also designated the RCOM06TAU Flight Unit, the device is designed to process and transfer digital information about the rocket’s direction. Gyroscopic instruments on the rocket sense aerodynamic variables such as speed, and pitch and yaw or attitude. These instruments generate electronic signals indicating out-of-normal course deviations. The ELVFC processes and compares these signals with its programmed software and sends corrected signals to the rudders and elevators to adjust pitch and yaw and to the rocket’s nozzles to adjust steering. This returns the rocket to proper course.

The ELVFC is said to be an “embedded” computer which, in the industry, designates one which, together with its software, is dedicated to a specific end use service application, in this case, flight control. However, the ELVFC is imported without
software. It is, however, loaded with so-called firmware, or software stored in PROM, which the protestant states is required for certain low-level functions not further described. The protestant maintains that notwithstanding the ELVFC is integrated into an enclosure specifically suited for a launch vehicle and is capable of withstanding the rigors of a space launch, without its software it is just a general-purpose computer.

The ELVFC was entered under a provision in heading 8803, HTSUS, for other parts of spacecraft launch vehicles. The entries were liquidated under a provision in heading 9014, HTSUS, as instruments and appliances for aeronautical or space navigation, automatic pilots. On protest, alternative claims are made under heading 8471, HTSUS, as other units of automatic data processing machines, or under another provision in heading 9014 as other electrical instruments and appliances.

The HTSUS provisions under consideration are as follows:

8471 Automatic data processing machines and units thereof

8803 Parts of goods of heading 8801 or 8802:

8803.90 Other:

8803.90.90 Other

9014 ...; other navigational instruments and appliances; parts and accessories thereof:

9014.20 Instruments and appliances for aeronautical or space navigation (other than compasses): 9014.20.40 Automatic pilots

9014.20.60 Other, electrical

ISSUE:

Whether the ELVFC, minus its application software, is an incomplete or unfinished navigational instrument 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. GRI 2(a) states in part that incomplete or unfinished articles are to be classified as complete or finished if, as imported, they have the essential character of the complete or finished article. GRI 6 permits the comparison of same-level subheadings within the same heading, in part by application of Rules 1 through 5, applied by appropriate substitution of terms.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding, 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 ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

Articles of chapter 90 are precluded from classification in heading 8471. See Section XVI, Note 1(m), HTSUS. Likewise, articles of chapter 90 are precluded from classification in heading 8803. See Section XVII, Note 2(g), HTSUS. Therefore, if the ELVFC is provided for in heading 9014, it must be classified there.

For heading 9014 purposes, the terms navigate and navigation are not defined in the text of the HTSUS or in the ENs. However, in common meaning, these terms connote the science or art of conducting aircraft from one place to another; especially, the method of determining position, course and distance traveled over the surface of the Earth by the principles of geometry and astronomy, and by reference to instruments used as aids. See HQ 087979, dated February 3, 1992, and related cases. The ENs, at p. 1481, (C)(1) through (7), list various meters and
indicators which measure or determine aerodynamic variables and provide information from which apparatus that maintains or alters a craft’s course can be activated. These exemplars, however, are not intended to be exclusive. In our opinion, the correct positioning of the rudders, elevators, and nozzles clearly relate to maintaining the rocket’s course or position. We conclude that a complete, operational ELVFC is a navigational instrument provided for in heading 9014.

The protestant maintains that when loaded with its application software, the ELVFC performs autopilot functions. However, despite incorporating firmware which protestant terms “low-level” and which implements the required data processing and control algorithms, the ELVFC in this case is imported minus its application software. It is, therefore, an incomplete or unfinished article. The ELVFC is classifiable in heading 9014 only if at the time of importation it has the essential character of a complete or finished navigational instrument. The factor which determines essential character varies with the good. It may, for example, be determined by the nature of a material or component, its bulk, quantity, weight or value, or by the role a constituent material in relation to the use of the goods. In this case, the ELVFC is invoiced at nearly $100,000. The cost or value of the operating software is not indicated. It is our understanding that the ELVFC must be specifically engineered against total dose radiation, single event upset and electrostatic discharge to meet stringent aerospace operational and control requirements. Unique circuit and packaging design offers maximum radiation dose protection to the semiconductors and prevents unwanted electrostatic discharge signals from entering the unit. Large scale integrated circuit technology minimizes single event upset. The available information indicates that notwithstanding the absence of application software at the time of importation, the ELVFC is specially engineered and designed to perform delicate navigational control operations in a suborbital environment. It is dedicated to the end use service application of spacecraft flight control and has no other practical commercial uses. The ELVFC has the aggregate of distinctive component parts that identify it as an instrument or appliance for space navigation. By operation of the legal notes cited previously, headings 8471 and 8803 are precluded from consideration.

Subheading 9014.20.40, HTSUS, provides for automatic pilots while subheading 9014.20.60 provides for other instruments and appliances for space navigation which are electrical. Under the authority of GRI 3(a), applied at the subheading level through GRI 6, if the ELVFC qualifies as an automatic pilot, it must be classified there. Relevant ENs on p. 1603 describe automatic pilots, also called autopilots, of heading 9014 as apparatus that temporarily replaces the pilot by controlling the equilibrium and flight of the aircraft in accordance with a pre-established setting. They consist chiefly of direct-operated or servo-motor controls (usually hydraulic motors which replace the pilot’s movements), and of automatic acting apparatus (high-speed gyroscopes) which co-ordinate instrument readings and the action of the servo-motors. However, modern flight controls now use digital computers which accept data from multiple sensors to control unstable aircraft with multiple feedback loops operating several aerodynamic control surfaces. The provision for automatic pilots describes a commodity eo nomine, by name. In the absence of a contrary legislative intent, judicial decision, or administrative practice, an unlimited eo nomine designation will include all forms of the named article. Autopilots fly an aircraft in the same manner as a pilot. Autopilots are also recognized for use with unmanned craft such as missiles and torpedoes and launch vehicles used to place spacecraft into orbit and ballistic missiles onto their trajectories. See “Autopilot,” McGraw-Hill Encyclopedia of Science & Technology, Vol. 2, p. 273 (1987). In our opinion, apparatus that utilizes data from gyroscopes, accelerometers, airspeed indicators, and other sensors, and converts this information in order to operate the aerodynamic controls of the aircraft, is an automatic pilot for purposes of subheading 9014.20.40, HTSUS. The ELVFC conforms to this description.

HOLDING:

The ELVFC is an incomplete or unfinished navigational instrument or appliance of heading 9014. Under the authority of GRI 3(a), applied at the subheading level through GRI 6, the ELVFC is an automatic pilot classifiable in subheading 9014.20.40, HTSUS.

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 are to 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 make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division

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