PRD 3501-90-000133; Radio Management Panel (RMP), Device for Selecting Radio Communications and Navigational Frequencies; Subheading 8526.91.00, Radio Navigational Aid Apparatus; Subheading 8529.90.50, Parts of Radio Transmission Apparatus; Parts Certified for Use in Civil Aircraft, Victoria Distributors Inc. v. United States, 57 CCPA 76, 425 F.2d 759; Civil Aircraft Agreement (CAA)

HQ 954193 SEPTEMBER 22 1993 CLA-2:CO:R:C:M 954193 JAS CATEGORY: Classification TARIFF NO.: 8803.30.00 Area Director of Customs 110 S. Fourth Street, Rm. 137 Minneapolis, MN 55401 RE: PRD 3501-90-000133; Radio Management Panel (RMP), Device for Selecting Radio Communications and Navigational Frequencies; Subheading 8526.91.00, Radio Navigational Aid Apparatus; Subheading 8529.90.50, Parts of Radio Transmission Apparatus; Parts Certified for Use in Civil Aircraft, Victoria Distributors Inc. v. United States, 57 CCPA 76, 425 F.2d 759; Civil Aircraft Agreement (CAA) Dear Sir: This is our decision on Application for Further Review of Protest No. 3501-90-000133, filed against your action in classifying the Radio Management Panel (RMP) from France used aboard the Airbus A320. The entry in issue was liquidated on March 16, 1990, and this protest timely filed on May 29, 1990. FACTS: The merchandise in issue is the Radio Management Panel (RMP) which is apparatus that provides centralized frequency selection for all VHF and HF radio communication systems used for ground- to-air voice communications between the cockpit and the airport control tower. The RMP also permits backup frequency selection for the radio navigational apparatus in case of primary system failure. The RMP does not incorporate transmitting or receiving apparatus. The pilot and crew utilize the RMP to select either voice communication frequencies (VHF) or frequencies used for radio navigation, either visual omni-range or instrument landing system. When the radio navigation frequencies are selected the A320 receives a directional signal from ground-based radio- navigational aids. This assists crewmembers in navigating the aircraft. The RMP 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). On the - 2 - belief that the RMP was part of radio transmitting and receiving apparatus, you liquidated the entry under the provision for other parts of such apparatus, in subheading 8529.90.50, HTSUS. In a submission dated September 9, 1993, counsel advances several alternative claims, the primary one being subheading 8529.90.40, HTSUS, a provision for parts of radio navigational aid or radio remote control apparatus. The provisions under consideration are as follows: 8529.90.40 Parts suitable for use solely or principally with radio navigational aid or radio remote control apparatus: Assemblies or subassemblies consisting of 2 or more parts or pieces fastened or joined together... Free under the CAA * * * * * 8529.90.50 Parts suitable for use solely or principally with the apparatus of headings 8525 to 8528: Other...5.9 percent * * * * * 8803.30.00 Parts of goods of heading 8801 or 8802: Other parts of airplanes or helicopters...Free ISSUE: Whether the RMP is a part for tariff purposes; if so, what apparatus is it part of? 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. The Harmonized Commodity Description And Coding System Explanatory Notes (ENs) constitute the Customs Cooperation Council's official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, 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 notes should always be consulted. See T.D. 89-80. - 3 - Articles of chapter 85 are precluded from classification in subheading 8803.30.00. See Section XVII, Note 2(f), HTSUS. Therefore, if any of the provisions of chapter 85 apply, the RMP must be classified there. Regarding the claim under subheading 8529.90.40, it must first be established that the apparatus which utilizes the RMP is within the scope of heading 8526, a provision covering, among other things, radio navigational aid apparatus. There are no ENs that clarify the scope of heading 8526. However, at p. 1375 the following are listed as examples of radio navigational aid equipment of heading 8526: radio beacons and radio buoys, with fixed or rotating aerials; receivers, including radio compasses equipped with multiple aerials or with a directional frame aerial. The radio communication/navigational system which utilizes the RMP is not compellingly analogous to these apparatus. Therefore, the "system" is not provided for in heading 8526. This eliminates subheading 8529.90.40 from consideration. For subheading 8529.90.50 to apply, the radio communication/ navigational "system" which utilizes the RMP must be apparatus of any of the headings 8525 to 8528. Relevant ENs at p. 1374 state that heading 8525 encompasses a group of radio-based apparatus whether or not incorporating reception apparatus that is used for the transmission of signals representing speech, messages or still pictures by means of electro-magnetic waves. These waves are transmitted through the upper atmosphere (ether) without any line connection. The radio communication function of the "system" appears to meet this description. However, we are unable to determine from the evidence of record whether the "system" performs or augments the performance of a navigational function that may be appropriate to navigational instruments and appliances of heading 9014. For this reason, we find that the record is inconclusive on whether the "system" is apparatus of heading 8525. Heading 8626 has previously been eliminated in the discussion of the claim under subheading 8529.90.40. Heading 8527 is likewise eliminated because the provision is limited by its terms to reception apparatus. The "system" has both transmitting and receiving capabilities. Finally, heading 8528 is limited by its terms to television receivers, a provision that obviously does not apply. For these reasons, we conclude that the radio/navigational "system" is not apparatus of any of the headings 8525 through and including 8528. Therefore, the RMP cannot be a part of heading 8529. Because no chapter 85 provision has been found to apply, section XVII, note 2(f), HTSUS, does not operate here to preclude heading 8803 from consideration. We further conclude that by its - 4 - function and design the RMP contributes to the safe and efficient operation of the Airbus A320, particularly where a radio navigational signal is being received. Victoria Distributors Inc. v. United States, 57 CCPA 76, 425 F.2d 759, and related cases. The RMP therefore qualifies as part of an airplane or aircraft of heading 8802. HOLDING: Under the authority of GRI 1, the Radio Management Panel (RMP) is provided for in heading 8803. Actual classification is in subheading 8803.30.00, HTSUS, as other parts of airplanes or helicopters. The rate of duty is free. The protest should be allowed. A copy of this decision should be attached to the Customs Form 19 and forwarded to the protestant, through counsel, as part of the notice of action on the protest. Sincerely, John Durant, Director