CLA-2 CO:R:C:M 953562 KCC
District Director
U.S. Customs Service
909 First Ave., Room 2039
Seattle, Washington 98174
RE: Protest No. 3001-92-100788; lavatory modules for airplanes;
parts of airplanes; EN 88.03; General EN (III) PARTS AND
ACCESSORIES; C.S.D. 83-44; FAA Regulations; 9406.00.80;
prefabricated buildings; EN 94.06; Note 4, Chapter 94; HRL
089799
Dear District Director:
This is in response to the Application for Further Review of
Protest No. 3001-92-100788, which pertains to the tariff
classification of lavatory modules for airplanes under the
Harmonized Tariff Schedule of the United States (HTSUS).
Specifications, photographs of the lavatory module and an
additional submission dated July 22, 1993, were submitted for our
review.
FACTS:
The lavatory modules are rooms used for an individual's
sanitary needs on an airplane. Specifically, the lavatory
modules under consideration are built for Boeing's 767 and 747
aircraft. The rooms provide an individual with privacy and a
number of conveniences. They contain equipment and facilities
for washing, drinking, dispensing of toilet articles, refuse
disposal, emergency oxygen provisions, smoke detection, and other
articles. The complete unit has a floor, ceiling, walls, and
entrance door which are constructed of phenolic resin honeycomb
sandwich panels.
The entries of the lavatory modules were liquidated on
August 21, 1992, under subheading 9406.00.80, HTSUS, which
provides for prefabricated buildings. In a protest timely filed
on October 21, 1992, Mitsubishi International Corporation,
contends that the lavatory modules are properly classified under
subheading 8803.30.00, HTSUS, which provides for parts of
airplanes.
The competing subheadings are as follows:
8803.30.00 Parts of goods of heading 8801 or
8802...Other parts of airplanes or
helicopters....
9406.00.80 Prefabricated buildings...Other....
ISSUE:
Are the lavatory modules classified as prefabricated
buildings under subheading 9406.00.80, HTSUS, or are they other
parts of airplanes under subheading 8803.30.00, HTSUS?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is
governed by the General Rules of Interpretation (GRIs). GRI 1,
HTSUS, 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...."
In understanding the language of the headings of the HTSUS,
the Harmonized Commodity Description and Coding System (HCDCS)
Explanatory Notes (ENs) may be utilized. The ENs, although not
dispositive, are to be used to determine the proper
interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128 (Aug. 23,
1989). EN 88.03 (pg. 1145) states that:
This heading covers parts of the goods falling in
heading 88.01 or 88.02, provided the parts fulfil both the
following conditions:
(i) They must be identifiable as being suitable for
use solely or principally with the goods of the
above-mentioned headings;
and (ii) They must not be excluded by the provisions of the
Notes to Section XVII (see the corresponding
General Explanatory Note).
General EN (III) PARTS AND ACCESSORIES (pgs. 1410-1412)
states that:
It should, however, be noted that these headings apply
only to those parts or accessories which comply with all
three of the following conditions:
(i) They must not be excluded by the terms of Note 2
to this Section....
and (ii) They must be suitable for use solely or
principally with the articles of Chapters 86 to
88....
and (iii) They must not be more specifically included
elsewhere in the Nomenclature....
The information submitted indicates that the lavatory
modules are manufactured according to Boeing's specifications for
use solely with its 747 and 767 aircraft. The lavatory modules
are designed to be mounted into the airplane structure and,
therefore, have no use whatsoever outside of the airplane. The
lavatory modules must meet Federal Aviation Administration
Regulations for fire protection (14 CFR 25.853), for load limits
and ultimate loads (14 CFR 25.301), and attachment fitting
criteria (14 CFR 25.561). If the lavatory modules do not meet
these requirements and are installed in an airplane, upon
examination by the Federal Aviation Administration the entire
airplane will not pass inspection to receive its air worthiness
certificate. See also, C.S.D. 83-44 (Headquarters Ruling Letter
(HRL) 066654), dated April 30, 1981, which classified electronic
subassemblies for aircraft passenger entertainment/service system
as parts of airplanes in item 694.61, Tariff Schedules of the
United States (TSUS) (the precursor provision to subheading
8803.30.00, HTSUS). Moreover, the lavatory module's primary and
standby AC electric power frequency is 400 Hz. This frequency is
appropriate for airplanes, whereas, the frequency for buildings
is usually 50 to 60 Hz. The above requirements, as well as,
various others set forth in the protest identify the lavatory
modules as being suitable for use solely or principally with
airplanes.
We are of the opinion that the lavatory modules are properly
classified under subheading 8803.30.00, HTSUS, as other parts of
airplanes. The lavatory modules are clearly identifiable as
being suitable for use solely or principally with airplanes.
They are not excluded by the terms of Note 2, Section XVII,
HTSUS, because they are not among the listed products. Moreover,
the lavatory modules are not parts and accessories covered more
specifically by another heading in the Nomenclature. The
lavatory modules meet both requirements of EN 88.03 and all three
requirements of General EN (III) PARTS AND ACCESSORIES to Section
XVII.
In making this determination, we have taken into
consideration the broad statement of Congressional purpose, in
enacting the "Agreement on Trade in Civil Aircraft" (via the
Trade Agreements Act of 1979), to promote a more free and
unencumbered trade in civil aircraft. This agreement applies to
all civil aircraft and all other parts, components, and sub-
assemblies of civil aircraft. The agreement specifically lists
toilet units and sanitary ware specially designed for aircraft as
products which are to receive duty-free treatment. In view of
the cited legal and administrative authorities, the fact that the
lavatory modules provide passenger comfort does not per se make
the lavatory modules any less a "part" for tariff purposes.
Classification under subheading 9406.00.80, HTSUS, is
inappropriate, because the lavatory modules are not described by
the terms of heading 9406, HTSUS. Note 4, Chapter 94, HTSUS,
states that:
For 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, shop, sheds, garages or
similar buildings.
Additionally, EN 94.06 (pgs. 1582-1583) states that heading 9406,
HTSUS, "covers prefabricated buildings, also known as
"industrialised buildings", of all materials. These buildings,
which can be designed for a variety of uses, such as housing,
worksite accommodation, offices, schools, shops, sheds, garages
and greenhouses...."
The lavatory modules are not in the class or kind of
building listed as exemplars in EN 94.06 or Note 4, Chapter 94,
HTSUS. Whether imported as fully assembled or unassembled, the
prefabricated buildings of heading 9406, HTSUS, are functional as
a building listed in the exemplars. Although the lavatory
modules are prefabricated, they are not the class or kind of
building classifiable in heading 9406, HTSUS. They are not
designed to function as a building, but must be attached to a
vehicle structure, in this case an airplane. The lavatory
modules are a part of an airplane and, therefore, are not
classifiable under subheading 9406.00.80, HTSUS. See, HRL 089799
dated October 4, 1991, which classified pickup truck campers
under subheading 8708.99.50, HTSUS, as parts and accessories of
motor vehicles, and not as prefabricated buildings under
subheading 9406.00.80, HTSUS.
HOLDING:
The lavatory modules are classified under subheading
8803.30.00, HTSUS, which provides for parts of airplanes. This
protest should be granted.
A copy of this decision should be attached to the Customs
Form 19 and provided to the protestant as part of the notice of
action on the protest.
Sincerely,
John Durant, Director