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HQ 966930




April 25, 2004

CLA-2 RR: CR: GC 966930 DBS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8526.10.00

Mr. Michael B. Speranza
B.E. Speranza Inc.
9013 Indianapolis Blvd.
Highland, IN 46322

RE: Revocation of NY 873105; Radar apparatus

Dear Mr. Speranza:

On May 1, 1992, the Area Director of Customs New York Seaport issued to you New York Ruling Letter (NY) 873105, classifying a depth and level gauging unit for measuring liquids in subheading 9026.10.60, Harmonized Tariff Schedule of the United States (HTSUS). We have reviewed this ruling and found it to be incorrect. This ruling sets forth the correct classification.

Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of the above identified ruling was published on March 10, 2004, in the Customs Bulletin, Volume 38, Number 11. No comments were received in response to the notice.

FACTS:

The following facts were set forth in NY 873105:

The system in question is the DDS non-contacting depth and level gauging unit. It utilizes electromagnetic radar waves to measure the level of liquids in containers. The literature submitted depicts the principal use as being in the metallurgical fields, notably in such areas as liquid steel level in a blast furnace or liquid iron level in a transport ladle. The system works by bouncing radar waves off of the liquid surface and calculating the elapsed time from point of transmission to point of reception. The system can perform 6 measurements per second over a level range of from .5 meters to 28 meters. The results of these measurements are calculated by a digital central processing unit.

ISSUE:

Whether apparatus that measures liquid levels by using radar is classified in heading 9026, HTSUS, as apparatus for measuring and checking levels of liquids or in heading 8526, HTSUS, as radar apparatus.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

8526 Radar apparatus, radio navigational aid apparatus and radio remote control apparatus:

8526.10.00 Radar apparatus

9026 Instruments and apparatus for measuring or checking the flow, level, pressure or other variable 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:

9026.10 For measuring or checking the flow or level of liquids:

Other:

9026.10.60 Other

Section XVI, Note 1(m), HTSUS, excludes articles of Chapter 90, HTSUS, from classification in Chapters 84 and 85, HTSUS. Therefore, we must first determine whether the instant apparatus is classified within Chapter 90, HTSUS. Note 1(h) to Chapter 90 excludes, in pertinent part, radar apparatus of heading 8526, HTSUS.

The term "radar apparatus" is not specifically defined in the HTSUS. Tariff terms are construed in accordance with their common and commercial meaning. See Nippon Kogasku (USA), Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. See C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982). McGraw-Hill Encyclopedia of Science & Technology (1995) provides in pertinent part, as follows:

Radar operates by transmitting electromagnetic energy into the surroundings and detecting energy reflected by objects. If a narrow beam of this energy is transmitted by the directive antenna, the direction from which reflections come and hence the bearing of the object may be estimated. The distance to the reflecting object is estimated by measuring the period between the transmission of the radar pulse and reception of the echoMany different kinds of radar have been developed for a wide range of purposes, but they all use electromagnetic radiation (radio waves) to detect and measure certain characteristics of objects (or targets) in their vicinity.

In addition, according to the ENs, radar height measuring apparatus (radio altimeters) is among the goods included in heading 8526, HTSUS. Therefore, articles that measure height or other characteristics by using radar waves, as described above, are included within the scope of radar apparatus of heading 8526, HTSUS.

The DDS non-contacting depth and level gauging unit measured liquid levels by radar waves. By virtue of the explanation of radar above, as well as the specific inclusion of height measurement in the ENs to heading 8526, HTSUS, it is evident that the measurement of liquid levels is clearly within the scope of the term radar apparatus. Therefore, it is excluded from classification within Chapter 90, HTSUS. For the same reasons, it is classified in heading 8526, HTSUS. Accordingly, we find NY 873105 to be in error.

HOLDING:

The DDS non-contacting depth and level gauging unit is classified in subheading 8526.10.0040, HTSUS, which provides for "Radar apparatus, radio navigational aid apparatus and radio remote control apparatus: Radar apparatus: Other." The rate of duty under the 2004 version of the HTSUS is free.

EFFECT ON OTHER RULINGS:

NY 873105, dated May 1, 1992, is hereby REVOKED. In accordance with 19 U.S.C 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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