CLA-2 CO:R:C:M 956637 LTO
Mr. Mark Leverett
H.Y.H. International Cargo Services, Inc.
P.O. Box 523315
1620 N.W. 82nd Avenue
Miami, Florida 33126
RE: Self-contained public bathrooms; reconsideration of NY 895112;
HQs 074191, 083442, 556449, 950772, 951004; Nairobi Protocol;
subheading 9817.00.96; Chapter 94, note 4; EN 84.79; EN 94.06
Dear Mr. Leverett:
This is in response to your letter of June 20, 1994,
requesting, on behalf of Wall City Design, Inc., reconsideration of
NY 895112, issued to you on March 24, 1994, concerning the
classification of self-contained public bathrooms under the
Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The articles in question are self-contained public bathrooms
made in Germany. The bathrooms, which are self-cleaning, are made
with three granite outside walls, a metal front door and composite
plastic roof. The insides of the bathrooms are made of metal. You
state that the bathrooms have been extensively modified for use by
the handicapped. These modifications include the following:
enlarged floor area, grab bars, a laterally adjustable support
system, operation buttons with Braille, and a device to extend use
time from twenty to forty minutes. They are designed to be placed
on city streets and in public parks, gas stations and other
commercial facilities.
In your letter of August 5, 1994, you state that these units
include a microprocessor that control all functions. They also
include a cleaning and disinfection system, which consists of a
cleaning device, comprised of many nozzle jets pressurized by a
water pump, that comes down from the wall behind the toilet and
clamps down on the seat and bowl. After cleaning, the device - 2 -
retracts into the wall and blow driers dry off the seat. After
each use, the floor cleaning system folds the floor inward, soaps
and then rinses it. The bathrooms have sensor-activated soap
dispensers, water faucets and hand driers. They also have an
emergency alarm system, which allows the user to set off a voice
and LED message outside the unit, indicating an emergency
condition. They have automatic doors that open when the user
inserts a quarter in the coin slot, and close when the user enters
the unit. The doors may be opened at any time by the press of a
button.
In NY 895112, these bathrooms were held to be classifiable
under subheading 9406.00.80, HTSUS, which provides for other
prefabricated buildings.
ISSUE:
Whether the self-contained public bathrooms are classifiable
as prefabricated buildings under subheading 9406.00.80, HTSUS.
LAW AND ANALYSIS:
You claim that the bathrooms, due to substantial
modifications, are entitled to duty-free treatment under subheading
9817.00.96, HTSUS, which provides for other articles specially
designed or adapted for the use or benefit of the blind or other
physically or mentally handicapped persons.
The Nairobi Protocol to the Agreement on the Importation of
Educational, Scientific, and Cultural Materials Act of 1982,
established the duty-free treatment for certain articles for the
handicapped. Presidential Proclamation 5978 and Section 1121 of
the Omnibus Trade and Competitiveness Act of 1988, provided for the
implementation of the Nairobi Protocol into subheadings 9817.00.92,
9817.00.94 and 9817.00.96, HTSUS. These tariff provisions
specifically state that "[a]rticles specially designed or adapted
for the use or benefit of the blind or other physically or mentally
handicapped persons" are eligible for duty-free treatment.
U.S. Note 4(a), subchapter XVII, chapter 98, HTSUS, states
that "the term 'blind or other physically or mentally handicapped
persons' includes any person suffering from a permanent or chronic
physical or mental impairment which substantially limits one or
more major life activities, such as caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, or working."
The primary issue regarding the self-contained public
bathrooms is whether they are "specially designed or adapted" for
the use or benefit of the handicapped within the meaning of the - 3 -
Nairobi Protocol. Although the legislative history of the Nairobi
Protocol discusses the concerns of Congress that the design,
modification or adaption of an article must be significant, so as
to clearly render the article for use by handicapped individuals,
no specific definition of these terms was established by Congress.
See Senate Report (Finance Committee) No. 97-564, September 21,
1982. See also HQ 951004, dated March 3, 1992. Since it is
difficult to establish a clear definition of what is "specially
designed or adapted," various factors must be utilized on a case-
by-case basis to determine whether a given article is "specially
designed or adapted" within the meaning of this statute.
In HQ 074191, dated December 13, 1984, Customs enunciated what
is now referred to as the "probability of general public use"
factor, as follows:
Whether any characteristics are present that create
a substantial probability of use by the chronically
handicapped, and whether the article is easily
distinguishable from articles useful to the general
public or whether use of the article by the general
public is so improbable that such use would be
fugitive.
In HQ 556449, dated May 5, 1992, we held that a two-handed mug
with a low center of gravity and corresponding top to reduce
spillage, as well as several other articles, were not entitled to
duty-free treatment under subheading 9817.00.96, HTSUS. We
determined that two-handed mugs were commonly used by children and
that the mug's design was very common in traveling mugs used by the
general public. Likewise, the other articles were not specially
designed or adapted for the handicapped.
In HQ 951004 and HQ 950772, dated March 3, 1992, we held that
telephones with jumbo sized buttons with large numbers, volume
adjustment controls, a flashing light, amplified receiver,
amplified ringer, etc., were not entitled to duty-free treatment
under subheading 9817.00.96, HTSUS. We stated that the telephones
were not marketed or sold just to the hearing and sight impaired
but were available to the general public. Moreover, we stated that
the tone and volume control, flashing light and other features,
were increasingly found in standard telephones to the general
public.
The subject self-contained public bathrooms are intended for
permanent installation in public places, such as streets or parks,
for use by the general public. While the bathrooms include
features that would benefit the physically handicapped, they are
not the type of equipment which can be said to be specially
designed or adapted for handicapped people. Accordingly, the - 4 -
bathrooms are not entitled to duty-free treatment under subheading
9817.00.96, HTSUS.
Alternatively, you contend that the bathrooms are classifiable
under either subheading 8479.10.00, HTSUS, which provides for
machinery for public works, building or the like, not specified or
included elsewhere, or subheading 8479.89.90, HTSUS, which provides
for other machines and mechanical appliances, not specified or
included elsewhere.
The General Rules of Interpretation (GRI's) to the HTSUS
govern the classification of goods in the tariff schedule. GRI 1
states in pertinent part that "for legal purposes, classification
shall be determined according to the terms of the headings and any
relative section or chapter notes . . . ."
The headings at issue are as follows:
8479 Machines and mechanical appliances having
individual functions, not specified or
included elsewhere in this chapter; parts
thereof
* * * * * * * * * * * * *
9406 Prefabricated buildings
The Harmonized Commodity Description and Coding System
Explanatory Notes (EN) constitute the Customs Co-operation
Council's 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 generally indicative
of the proper interpretation of these headings. See T.D. 89-80, 54
Fed. Reg. 35127, 35128 (Aug. 23, 1989).
EN 84.79, pg. 1314, states that heading 8479, HTSUS, is
restricted to machinery having individual functions, which "[i]s
not covered more specifically by a heading in any other Chapter of
the Nomenclature . . . ." Thus, if the bathrooms are classifiable
under heading 9406, HTSUS, they cannot be classified under heading
8479, HTSUS.
Note 4 to chapter 94, HTSUS, states that "[f]or the purposes
of heading 9406, the expression 'prefabricated buildings' means
buildings which are finished in the factory or put up as elements,
entered together, to be assembled on site, such as housing or
worksite accommodation, offices, schools, shops, sheds, garages or
similar buildings [emphasis added]." It is our opinion that the
self-contained public bathrooms meet this description. They
consist of three granite outside walls, a metal front door and - 5 -
composite plastic roof, and are similar to "housing or worksite
accommodation."
While they are equipped with toilet and floor cleaning
systems, as well as, an emergency alarm system and microprocessor,
EN 94.06, pg. 1582, states that "[t]he buildings may or may not be
equipped." The note states that "built-in equipment" normally
supplied is to be classified with the buildings, including:
electrical fittings (wiring, sockets, switches,
circuit-breakers, bells, etc.), heating and air
conditioning equipment (boilers, radiators, air
conditioners, etc.), sanitary equipment (baths,
showers, water heaters, etc.), kitchen equipment
(sinks, hoods, cooker, etc.), and items of
furniture which are built in or designed to be
built in (cupboards, etc.).
While the bathrooms in question are undoubtedly sophisticated
bathroom systems, the cleaning devices, microprocessor and
emergency alarm system, are not more material or more substantial
than the "built-in equipment" named in EN 94.06 (i.e., air
conditioner, water heater, stove/range, sink). Accordingly, the
bathrooms are classifiable under subheading 9406.00.80, HTSUS.
See, e.g., HQ 083442, dated August 18, 1989.
HOLDING:
The self-contained public bathrooms are classifiable under
subheading 9406.00.80, HTSUS. The corresponding rate of duty for
articles of this subheading is 5.7% ad valorem.
NY 895112, dated March 24, 1994, is affirmed.
Sincerely,
John Durant, Director
Commercial Rulings Division