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HQ 965199




July 30, 2002

CLA-2 RR:CR:GC 965199 TPB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9013.80.9000

Port Director
U.S. Customs Service
2nd and Chestnut Streets
Philadelphia, PA 19106

RE: Multirole Turret; Protest 1101-01-100088

Dear Port Director:

This is our decision on Protest 1101-01-100088, filed against your classification under the Harmonized Tariff Schedule of the United States (“HTSUS”), of the Multirole Turret (“MRT”), imported by Boeing Helicopters (“Protestant”). The entries were liquidated November 17, 2000, and this protest timely filed on February 16, 2001. In preparing this ruling, consideration was also given to supplemental information provided by the protestant by letters of April 4 and July 5, 2002.

FACTS:

The article at issue is a MRT, part # V-14-5263-01, which consists of a thermal imaging device with an infrared (“IR”) auto-tracker unit mounted on a turret platform. The turret is subsequently installed under the nose of the U.K.’s Royal Air Force Chinook Mk3 helicopter and provides an unobstructed hemi-spherical field-of-regard beneath the aircraft. The MRT functions as a part of the Multisensor Turret System (“MST-Sysytem”) with two separate components, a control grip unit and a control switch unit. The complete MST-System uses thermal energy given off by objects in the form of infrared radiation to create an image of the surrounding terrain. The MRT outputs a standard format monochrome video signal which includes a graphic overlay for display on the aircraft displays (which are not a part of the MST-System).

The MST-System’s main application in the Chinook Mk3 is as a “situational awareness and surveillance” system.

ISSUE:

Is the MST properly classified under heading 9027, as an instrument and apparatus for measuring or checking quantities of heat; heading 9014, as navigational instruments and parts thereof; or heading 9013, as other optical appliances and instruments, not specified elsewhere in chapter 90?

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 at the international level. 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 HTSUS. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

The HTSUS headings under consideration are as follows:

Liquid crystal devices not constituting articles provided for more specifically in other headings; lasers, other than laser diodes; other optical appliances and instruments, not specified or included elsewhere in this chapter; parts and accessories thereof:

Direction finding compasses; other navigational instruments and appliances; parts and accessories thereof:

Instruments and apparatus for physical or chemical analysis (for example, polarimeters, refractometers, spectrometers, gas or smoke analysis apparatus); instruments and apparatus for measuring or checking quantities of heat, sound or light (including exposure meters); microtomes; parts and accessories thereof:

Heading 9027, HTSUS, provides for, among other things, instruments for measuring or checking quantities of heat. The protestant believes that the MRT is properly classified under this heading. However, as the heading indicates, apparatus of this heading give a quantitative measure of heat. The MRT, in this case, takes data acquired from visible and non-visible radiation and displays it in the form of images for the pilot to evaluate. As there is no quantitative measurement of the information gathered by the thermal imaging device in the turret, the MRT does not meet the terms of heading 9027, HTSUS.

Alternatively, the protestant claims that the MRT should be classified under heading 9014, HTSUS, which provides, in pertinent part, for other navigational instruments and parts and accessories thereof. The protestant claims that the MRT system may be used under conditions of poor visibility (e.g., clouds, smoke, darkness) to provide the pilot with information on the terrain and objects over which the aircraft is flying, allowing them to safely navigate.

Heading 9014 is a “use” provision. A designation by use may be established, even though the word “use” or “used” does not appear in the language of the statute. E.C. Lineiro v. United States, 37 CCPA 10, 14, C.A.D. 411 (1949). To satisfy the terms of heading 9014, HTSUS, the protestant must demonstrate that the MRT’s principal use is that of the class or kind of instruments used for navigation. See Additional U.S. Rule of Interpretation 1(a).

The ENs for heading 9014 describe examples of other navigational instruments and appliances in 90.14 EN (II)(A)-(C). These exemplars, however, are not intended to be exclusive, and may expand to include the originally un-thought-of improvements and adaptations to the older technology.

Although the term “navigation” is not defined in the HTSUS or the ENs, Customs understands the common usage of this term to connote the science or art of conducting ships (or aircraft) from one place to another, especially the method of determining position, course and distance traveled over the surface of the Earth by principles of geometry and astronomy and by reference to instruments used as aids. See, for example, Oxford English Dictionary, 1987 ed.; Merriam-Webster on-line dictionary (www.m-w.com).

As indicated in the protestant’s April 4th submission, the general term for the MRT’s use is as a “situational awareness

Situational awareness, as understood by this office, refers to the degree of accuracy by which one’s perception of his current environment mirrors reality. www. act.navy.mil/Situational_ Awareness.htm and surveillance Surveillance: the act of observing or the condition of being observed. The American Heritage® Dictionary of the English Language, Fourth Edition

Copyright © 2000 by Houghton Mifflin Company.” system. The MRT is not a flying aid which may be used as part of an instrumented take-off and landing system, nor is it a flight safety critical system. Because of its “multi-purpose nature, the MRT may be used for the location and general surveillance of landing zones on land and sea, detecting and identifying potential hazards and for situational awareness during “nap-of-the-earth” (very low altitude) flying. The Chinook Mk3 will be equipped with other primary navigational equipment, and the MRT at best would be considered a secondary system. The MRT system appears to primarily be used as a tactical information gathering system, rather than a navigational system for the helicopter.

The protestant indicates that the MRT functions similarly to ultrasonic sounding or detecting equipment, which is provided for in EN 90.14 (II)(B)(7). That note includes in the heading “[u]ltrasonic sounding or detecting equipment, for example, asdic Asdic (named after the Anti-Submarine Detection Investigation Committee) and was invented during World War I by British, American, and French scientists. This system located underwater objects by transmitting an acoustical pulse of energy, then listening for any echoes returned from that object. This was the precursor to modern sonar., sonar SONAR (SOund NAvigation and Ranging) is an American term dating from World War II and is now used universally to describe all underwater detection equipment. or the like, used for normal sounding operations, for mapping the sea bed, for detecting submarines, wrecks, shoals of fish, etc.” However, a distinction can be drawn between equipment of this category and FLIR FLIR: Forward Looking InfraRed..

Sonar and the like, (similar to radar
RADAR: RAdio Detecting And Ranging.) are “active” systems, which emit special signals and from the timing and volume of its reflection, produce visual representations, or “blips”, showing the direction and range of the reflector. By contrast, FLIR is a “passive” system which converts infrared radiation to electronic data and displays it as images of terrain features and ground or airborne objects which may be of interest to the aircrew. Additionally, sonar, unlike radar which is classified eo nomine in heading 8526, HTSUS, is not itself provided for eo nomine in the heading, and must show principal use in navigation in order to be classified under heading 9014, HTSUS. See, for example HRL 964307, dated July 6, 2000, which classified a sonar system under heading 9015, as hydrographic surveying equipment, rather than heading 9014, other navigational equipment. Because the principal use of the MRT is not that of navigation, that is, to guide the helicopter from one point to another, but rather for situational awareness and surveillance, it is not properly classified under heading 9014, HTSUS, as parts of other navigational equipment.

Heading 9013 provides for other optical appliances and instruments, not specified or included elsewhere in this chapter. Since the MRT is an optical device that cannot be classified under any other heading in chapter 90, HTSUS, it falls to be classified in this provision of the tariff schedule.

HOLDING:

For the reasons stated above, the MRT is classified under subheading 9013.80.9000, HTSUS, which provides for: “liquid crystal devices not constituting articles provided for more specifically in other headings; lasers, other than laser diodes; other optical appliances and instruments, not specified or included elsewhere in this chapter; parts and accessories thereof: other devices, appliances and instruments: other.”

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,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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