HQ 956637

August 29, 1994

CLA-2 CO:R:C:M 956637 LTO

CATEGORY: Classification

TARIFF NO.: 9406.00.80

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

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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

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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

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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

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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