HQ 953562

October 7, 1993

CLA-2 CO:R:C:M 953562 KCC

CATEGORY: Classification

TARIFF NO.: 8803.30.00

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