CLA-2 CO:R:C:M 952234 DWS

Area Director
New York Seaport
U.S. Customs Service
6 World Trade Center
New York, NY 10048

RE: IA 44/92; Railway Carbodies; Railway Passenger Cars Not Self-Propelled; Unfinished Railcars; GRI 2(a); HQ 089208; HQ 950118; American Import Co. v. U.S.; General Explanatory Note to Chapter 86; Explanatory Note 86.07; 8607.99.10

Dear Area Director:

This is in response to your memorandum of June 26, 1992 (CLA-2-86:S:N:N1-106), forwarding a letter dated April 3, 1992, from Barnes, Richardson & Colburn on behalf of Mitsui & Company (U.S.A.), Inc., requesting internal advice concerning the tariff classification of eight carbodies for railway passenger coaches under the Harmonized Tariff Schedule of the United States (HTSUS).

The importer's contract calls for it to supply 10 railway passenger coaches to the Long Island Railroad. This decision is limited to the components for coaches designated 3 through 10. Coaches designated 1 and 2 were separately ruled upon in HQ 089208, dated December 26, 1991.

FACTS:

The merchandise consists of eight carbodies for railway passenger coaches. After importation into the United States, the carbodies were assembled with imported trucks and other components into not self-propelled, bi-level passenger cars. These cars are similar to self-propelled cars with married pairs, i.e., they contemplate use as an A and B pair. However, although intended to be used as a pair, after final assembly in the United States, each A and B car is complete and capable of independent use as a passenger railway car.

In their condition as imported, the eight carbodies were not complete. They consisted of two sides, two ends, and a roof, all of aluminum and/or steel construction. The carbodies also contained a low voltage power supply unit, an air conditioning unit, a passenger area luggage rack, frames for seats, coat hooks, windows, doors, toilets, wall cabinets, and ceiling and flooring materials. Counsel for the importer claims that the carbodies as imported represent 48.7 percent of the final value of the completed railway cars.

After importation, the carbodies were fitted with truck assemblies (the undercarriage), radio equipment, power supply and control equipment for the air conditioning system, coupling equipment, brake hoses and valves, seat cushions, and other minor accessories.

ISSUE:

Whether, for classification purposes, the subject carbodies impart the essential character of not self-propelled railway passenger coaches?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

The carbodies involved in HQ 089208, at the time of importation, consisted of two sides, two ends, and a roof, all of aluminum and/or steel construction. Included were the windows and doors, toilets, wall cabinets, ceiling and flooring materials, the radio with antenna and power supply unit, the air conditioning unit with electrical supply, an electric coupler with a battery and cables, brake hoses and valves, the passenger and saloon area luggage racks, the exterior indicator light, set frames with cushions, the door access panel, and stairway and exterior handles. Counsel for the importer claimed that the value of the carbodies at importation represented 74 percent of the value of the completed passenger coach.

We held in HQ 089208 that carbodies 1 and 2 are classifiable under subheading 8605.00.00, HTSUS, which provides for: "[r]ailway or tramway passenger coaches, not self-propelled." Counsel for the importer argued, as in the present case, that the carbodies are classifiable under subheading 8607.99.10, HTSUS, which provides for: "[p]arts of railway or tramway locomotives or rolling stock: [o]ther: [o]ther: [f]or vehicles of heading 8605 or 8606,except brake regulators."

In determining whether an unfinished article imparts the essential character of that same article completed, GRI 2(a) must be consulted. It 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 unfinished article. It shall also include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), entered unassembled or disassembled. The term "unfinished" was defined in American Import Co. v. U.S., 26 CCPA 72, 74, T.D. 49612 (1938), wherein the court stated:

[i]t 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.

As stated in HQ 089208, "[a] railway or tramway passenger coach is a wheeled rail vehicle designed to carry passengers primarily for day travel. As designed, a complete or finished coach would ordinarily comprise the structural shell outfitted with seats and other customary furnishings relative to passenger comfort, sometimes supported by an underframe, and trucks consisting of the wheels, axles and brakes, plus pneumatic and electric subassemblies."

It is our position that, as was held in HQ 089208, the subject carbodies impart the essential character of complete railway passenger coaches. The carbodies have been so far processed toward their ultimate completed form as to be dedicated to the making of railway passenger coaches.

Counsel for the importer argues that because only 48.7 percent of the value of the completed railway passenger coaches is imported, the carbodies cannot impart their essential character. We disagree. HQ 950118, dated December 10, 1991, dealt with the classification of unfinished transit carbodies under the HTSUS. At the time of importation, the transit carbodies represented 49.7 percent of the value of the completed transit cars. However, the carbodies were held to impart the essential character of the completed transit cars.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes, although not dispositive, are to be used to determine the proper interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128 (August 23, 1989). In part, General Explanatory Note to chapter 86 (p. 1414), HTSUS, states that:

[i]ncomplete or unfinished vehicles are classified with the corresponding complete or finished vehicles, provided they have the essential character thereof. Such vehicles may include:

(1) Locomotives or motorised railway or tramway coaches, not fitted with a power unit, measuring instruments, safety apparatus or service equipment.

(2) Passenger coaches not fitted with seats.

(3) Truck underframes complete with suspension and wheels.

On the other hand, bodies of motorised railway or tramway coaches, of vans, wagons or trucks or of tenders, not mounted on underframes, are classified as parts of railway or tramway locomotives or rolling-stock (heading 86.07).

In part, Explanatory Note 86.07 (pp. 1418-1419), HTSUS, states that:

[p]arts of railway or tramway locomotives or rolling-stock include:

(10) Bodies (not mounted on underframes) for motorised or non-self-propelled railway or tramway rolling-stock (e.g., for coaches, trucks, wagons, etc.); parts of such bodies (e.g., coach or truck doors, partitions, hinged sides of wagons, side stanchions, running boards, water tanks for tenders).

Counsel for the importer argues that because the subject merchandise consists of bodies not mounted on underframes, under General Explanatory Note to chapter 86, HTSUS, the carbodies are classifiable as parts under heading 8607, HTSUS.

We disagree with counsel's argument. It is our position that the subject carbodies are not the types of articles contemplated in Explanatory Note 86.07, HTSUS. We find that the bodies listed in that note are more like coach body shells. The subject carbodies are equipped with much more than doors and partitions. They contain articles such as a low power voltage power supply unit, an air conditioning unit, toilets, and wall cabinets.

Consequently, under General Explanatory Note to chapter 86, HTSUS, the subject carbodies are classifiable under subheading 8605.00.00, HTSUS.

HOLDING:

The carbodies are classifiable under subheading 8605.00.00, HTSUS, which provides for: "[r]ailway or tramway passenger coaches, not self-propelled." The general, column one rate of duty is 18 percent ad valorem. You should advise the internal advice applicant of this decision.

Sincerely,

John Durant, Director
Commercial Ruling Division