OT:RR:CTF:TCM H108235 HvB
Ted Corbett
Apex Industries Inc.
250 Pacific Avenue
Moncton, New Brunswick
Canada E1C 8M6
RE: Revocation of New York Ruling Letter (NY) D85781, NY D88830, and NY B88222; Classification of Aircraft Passenger Boarding Bridges
Dear Mr. Corbett:
This letter is to inform you that U.S. Customs and Border Protection (CBP) has reconsidered New York Ruling Letter (NY) D85781, issued to you on January 20, 1999. In that ruling, CBP classified three types of aircraft passenger boarding bridges designed to be used for embarking and disembarking passageway between a terminal and an aircraft under subheading 8428.90.0090, of the Harmonized Tariff Schedule of the United States (“HTSUS”), which provides for: “Other lifting, handling, loading or unloading machinery: other: other: other.”
We have reviewed NY D85781, and have found it to be in error. For the reasons set forth below, we hereby revoke NY D85781, and two other rulings with substantially similar merchandise: NY B88222, dated August 13, 1997, which was issued to Dynasty Customer Brokers, Inc. and NY D88830, dated March 24, 1999, which was issued to FMT Aircraft Gate Support System Canada, Inc.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625 (c)(1)), 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), ), a notice was published in the CUSTOMS BULLETIN, Volume 49, No. 16, on April 22, 2015, proposing to revoke NY D85781, NY D88830, and NY B88222, and any treatment accorded to substantially identical transactions. No comments were received in response to this notice.
FACTS:
In NY D85781, we described the merchandise as follows:
The Apex Elevating Sliding Bridge basically consists of a fixed walkway, rotunda, moveable tunnel, bridgehead cab, lift column, service door, landing and stairs, and a canopy. The tunnel extends from the terminal doorway at a maximum vertical travel rate of 1.5 meters per minute and a maximum horizontal travel rate of 6 meters per minute, thus enabling the bridge to align with an aircraft's doorway. Limit switches and physical stops ensure the bridge operates safely. The Apex Apron Drive Bridge is similar to the Elevating Sliding Bridge, but utilizes two or three telescoping tunnels to connect to a commercial aircraft doorway. It also features a service door with stairs and a landing so that authorized personnel have access to the terminal apron. Apex Fixed Walkways basically consist of a tunnel and rotunda supported on fixed columns and an extendable walkway. The fixed tunnels are manufactured in sections up to 55 feet in length and have rigid tubular end frames for additional structural stability. As with the other bridges, the interior walls consist of laminated plastic panels, and the floor features either neoprene rubber or carpeting.
And, in NY B88222 and NY D88830, we classified similar merchandise.
ISSUE:
Are the passenger boarding bridges classifiable under heading 8428, HTSUS, as “Other lifting, handling, loading or unloading machinery (for example, elevators, escalators, conveyors, teleferics)” or under heading 8479, HTSUS, as “Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter, parts thereof”?
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 2 through 6 may then be applied in order.
The HTSUS provisions under consideration are as follows:
8428 Other lifting, handling, loading or unloading machinery (for example, elevators, escalators, conveyors, teleferics):
***
8428.90 Other machinery…
8479 “Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter, parts thereof:
***
Passenger Boarding Bridges:
8479.71 Of a kind used in airports
Legal Note 4 to Section XVI, HTSUS, provides, in relevant part:
Where a machine (including a combination of machines) consists of individual components (whether separate or interconnected by piping, by transmission devices, by electric cables or by other devices) intended to contribute together to a clearly defined function covered by one of the headings in chapter 84 or chapter 84, then the whole falls to be classified in the heading appropriate to that function.
***
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 nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The ENs to heading 8479, HTSUS, provide, in part:
* * *
(III) MISCELLANEOUS MACHINERY
This group includes:
* * *
(32) Passenger boarding bridges. These bridges permit passengers and personnel to walk between a terminal building and a parked aircraft, a cruise ship or ferry boat, without having to go outside. The bridges generally consist of a rotunda assembly, two or more rectangular telescopic tunnels, vertical lift columns with wheel bogies, and a cabin located in the front part of the bridges. They include electromechanical or hydraulic devices that are designed for moving the bridges horizontally, vertically and radially (i.e., their telescopic sections, cabin, vertical lift columns, etc.), in order to adjust the bridges to the appropriate position to the particular aircraft’s door, or to the port (entrance) of the cruise ship or ferry-boat. The passenger boarding bridges of the type used at seaports can be, furthermore, equipped with a transitional device installed on their foreside which can be extended into the port (entrance) of the cruise ship or ferry-boat. These bridges themselves do not lift, handle, load or unload anything.
* * *
The ENs to heading 8428, HTSUS, provide, in part:
* * *
This heading also excludes:
* * *
(c) Passenger boarding bridges (heading 84.79).
* * * * *
Heading 8428, HTSUS, provides for “Other lifting, handling, loading or unloading machinery (for example, elevators, escalators, conveyors, teleferics).” CBP has held, consistent with EN 84.28, that heading 8428 is intended for those machines that “either perform the actual function of lifting, moving or manipulating an object.” See HQ H058784, dated December 15, 2009. The subject passenger boarding bridges do not actively engage in lifting, moving, or handling objects. Instead, they act as walkways that allow airline personnel and passengers to cross between the airport terminal and the aircraft. In addition, the EN for heading 8428 expressly excludes the merchandise in question, passenger boarding bridges, under EN 84.28(c). As such, we conclude that the passenger boarding bridges are not “lifting and handling machinery” of heading 8428, HTSUS.
Heading 8479, HTSUS, provides, in pertinent part, for “Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter, parts thereof.” The three different types of passenger boarding bridges classified in NY D85781, identified as the Apex Elevating Sliding Bridge, the Apex Drive Bridge, and the Apex Fixed Bridge, serve as passageways between a terminal and an aircraft. Each passenger boarding bridge consists of various parts, such as tunnel, fixed walkway, and a rotunda, which work in concert to allow airline personnel and passengers to access to the aircraft and terminal. Hence, under Note 4 to Section XVI, HTSUS, the components contribute together to a clearly defined function covered by heading 8479, HTSUS.
As such, we find that the passenger boarding bridges at issue are classified under heading 8479, specifically, in subheading 8479.71.00, HTSUS, as “Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter, parts thereof: Passenger Boarding Bridges: Of a Kind used in Airports.” We also note that at HSC 41 in November 2008 (Annex F/2 to Doc. NC1263E1a), the Harmonized System Committee (HSC) of the World Customs Organization (WCO) recently considered the structure and function of passenger boarding bridges and determined that the classification should be in heading 8479, by application of GRIs 1 and 6. As stated in T.D. 89-80, CBP accords HSC opinions the same weight as that the EN, i.e., while neither legally dispositive or binding, these decisions are generally indicative of the proper interpretation of these headings, and note that this ruling is in accord with the HSC opinion.
HOLDING:
By application of GRI 1 and Note 4 to Section XVI, the subject passenger boarding bridges are classified in heading 8479.71.00, HTSUS, specifically in subheading 8479.71.00, which provides for: “Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter, parts thereof: Passenger Boarding Bridges: Of a Kind used in Airports.”
EFFECT ON OTHER RULINGS:
NY D85781, dated January 20, 1999, is hereby revoked.
NY D88830, dated March 24, 1999, is hereby revoked.
NY B88222, dated August 13, 1997, is hereby revoked.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the CUSTOMS BULLETIN.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division