CLA-2 CO:R:C:M 950118 LTO

Mr. Carlo Bruzzone
Bruzzone Shipping, Inc.
132 Nassau Street
New York, New York 10038

RE: Railway cars; 8607.99.50; GRI 2(a); HQ 084845; HQ 086555; EN 86.03; EN to Section XVII, Chapter 86; American Import Co. v. United States

Dear Mr. Bruzzone:

This is in response to Ms. Graciela Bruzzone's letter of August 9, 1991 to this office, requesting the classification of subway cars under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The transit cars, 100 of which are to be delivered to the Washington Metropolitan Area Transit Authority (WMATA), are composed of two distinct carbody sections called "married pairs" ("A" and "B"). When the two sections are joined together they form one operational passenger railcar. The initial delivery consists of four prototype cars (two "A" carbodies and two "B" carbodies). They will be shipped in operating condition, except for minor disassembly needed for shipping purposes. The importer states that the "A" carbody and the "B" carbody may be shipped together on the same vessel or may be shipped separately on different vessels.

The other 96 units will be shipped partially assembled. 49.72 percent of the carbodies' constituent parts will be assembled in Italy. This assembly includes the structural shell, windows, doors, underframe, interior lighting and fixtures, air diffuser ducting, and wiring and tubing for connection to the electrical and mechanical components. The balance of 50.28 - 2 -

percent of the constituent parts, to be completed in the United States, includes the Westinghouse Electric Co. (Welco) propulsion system and ATC equipment, the Westinghouse Air Brake Co. (Wabco) brake equipment and couplers, the Stone Safety Co. air- conditioning system, the Midwest/Harmon intercommunication radio system, the Standard Steel Co. wheel assembly, Teperman seats, Timken bearings, and Sofer Co. trucks. The final assembly of these vehicles will be performed at a facility located in Harrison, New Jersey.

The transit cars are powered by electrical energy received from a stationary external source. The "A" and "B" carbodies consist of different equipment and must be joined together to be operational. The separate cars do not function as self-propelled railcars.

ISSUE:

Situation number one: Whether the subject "married pairs" of railcars, when imported on the same ship, are classifiable under subheading 8603.10.00, HTSUS, which provides for "[s]elf- propelled railway . . . coaches . . . [p]owered from an external source of electricity."

Situation number two: Whether the subject "married pairs" of railcars, when imported on separate ships, are classifiable under subheading 8603.10.00, HTSUS, or under subheading 8607.99.50, HTSUS, which provides for "[p]arts of railway or tramway locomotives or rolling stock . . . [o]ther . . . [o]ther."

Situation number three: Whether the partially assembled railcars are classifiable under subheading 8603.10.00, HTSUS, or under subheading 8607.99.50, HTSUS.

LAW AND ANALYSIS:

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:

...classification shall be determined according to the terms of the headings and any relative section or chapter notes...

Heading 8603, HTSUS, provides for "[s]elf-propelled railway or tramway coaches, vans and trucks, other than those of heading - 3 -

8604." Subheading 8603.10.00, HTSUS, provides for railway cars "[p]owered from an external source of electricity." The Harmonized Commodity Description and Coding System Explanatory Note (EN) 86.03, pg. 1415, HTSUS, states that "[t]hese vehicles may be designed to travel singly, or to be coupled to one or more vehicles of the same type, or to one or more trailer vehicles."

Situation number one describes the importation of complete "A" and "B" cars, or "married pairs," on the same ship. These "married pairs" must be joined together to be operational. When together, the "married pairs" are powered from a stationary external source, and are, thus, classifiable under subheading 8603.10.00, HTSUS.

Situation number two describes the importation of complete "A" and "B" cars when imported on separate ships. Situation number three describes the importation of unassembled carbodies that will be completed in the United States. 49.72 percent of the carbodies' constituent parts will be assembled in Italy. This assembly consists of the structural shell, windows, doors, underframe, interior lighting and fixtures, air diffuser ducting, wiring and tubing for connection to the electrical and mechanical components. The balance of 50.28 percent of the constituent parts, to be completed in the United States, includes the propulsion system, ATC equipment, brake equipment, couplers, air- conditioning system, intercommunication radio system, wheel assembly, seats, bearings, and trucks.

General Rule of Interpretation (GRI) 2(a) states that "[a]ny reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article." Moreover, the Explanatory Notes to Section XVII, Chapter 86, pg. 1414, state that "[i]ncomplete or unfinished vehicles are classified with the corresponding complete or finished vehicles, provided they have the essential character thereof." For an item to have the essential character of the finished product, it must be recognizable as such a product. In determining an article's essential character, one must look to the merchandise in question--as it changes, so too may the factors which determine its essential character. Factors found to be relevant in other contexts include the significance of the imported components or their role in relation to the use or overall functioning of the complete article and, to the extent that it validates the comparison, the cost or value of the complete article versus the cost or value of the imported components. See HQ 084845, dated November 24, 1989; HQ 086555, dated April 16, 1990. - 4 -

A complete railway or tramway passenger coach is a wheeled rail vehicle designed to carry passengers for travel. As designed, a complete coach would ordinarily consist of a structural shell outfitted with seats and other customary furnishings relative to passenger comfort and convenience, an underframe and trucks to support the shell, wheels, axles, brakes, electric subassemblies, and the mode of propulsion.

In situation number two, the "A" and "B" cars are recognizable as a complete railway passenger car. The "married pairs" each contain all of the above components, and must only be joined together to complete the finished product. Thus, the cars have the essential character of "[s]elf-propelled railway . . . coaches . . . [p]owered from an external source of electricity," and are classifiable under subheading 8603.10.00, HTSUS.

In situation number three, noting the list of components, the incomplete or unfinished railcar also has the essential character of a "[s]elf-propelled railway . . . coach[] . . . [p]owered from an external source of electricity," which is classifiable under subheading 8603.10.00, HTSUS. The term "unfinished" was defined in American Import Co. v. United States, 26 CCPA 72, 74, T.D. 49612 (1938), wherein the court stated:

It has long been the generally accepted rule that a thing may be classified for tariff duty purposes under the eo nomine provision for the article unfinished if that thing has been so far processed towards its ultimate completed form as to be dedicated to the making of that article or class of articles alone.

In the instant case, the absence of the parts added in the United States does not detract from the railcar's identity as a self- propelled railway passenger car. The unassembled carbodies are clearly dedicated to the making of the complete article. They possess the aggregate of distinctive component parts which identify the components in general as a wheeled rail vehicle. Thus, the railcars described in situation number three are also classifiable under subheading 8603.10.00, HTSUS.

The importer contends that the railcars described in situation number three are classifiable under subheading 8607.99.50, HTSUS, which provides for "[p]arts of railway or tramway locomotives or rolling stock . . . [o]ther . . . [o]ther." However, according to GRI 2(a) and the Explanatory Notes to Section XVII, Chapter 86, pg. 1414, an article cannot be classified as a part of an item if it has the "essential character" of a finished product described in another heading.

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HOLDING:

The railcars, described in situations one, two, and three, are classifiable under subheading 8603.10.00, HTSUS, which provides for "[s]elf-propelled railway . . . coaches . . . [p]owered from an external source of electricity." The applicable rate of duty for these articles is 6.3% ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division