CLA-2 RR:CR:GC 962920 JAS
Port Director of Customs, JFK Area
Bldg. # 77
Jamaica, New York 11430
RE: Protest 1001-98-102624; Aluminum Flexible Honeycomb;
Unexpanded Aluminum Block, Material for Use in Aircraft
Construction
Dear Port Director:
This is our decision on Protest 1001-98-102624, filed against your classification under the Harmonized Tariff Schedule of the United States (HTSUS), of an aluminum foil product called FORMGRID. The entries under protest were liquidated on April 24, and on May 1, 8, and 22, 1998, and this protest timely filed on July 23, 1998.
FACTS:
FORMGRID is a flexible aluminum honeycomb core material produced in Japan from aluminum foil of U.S. origin. As imported, the material is called unexpanded block and conforms to Boeing Material Specification (BMS) 4-6l, covering elevated temperature core compression and shear strengths, delamination strength, corrosion resistance and bondability, among other variables. The blocks generally measure 4 inches x 9 inches x 54 inches, with each block consisting of a predetermined number of bell-shaped cells. When expanded, these blocks are for use in making wing control surfaces and other subassemblies for Boeing commercial aircraft.
The merchandise was entered under a provision of heading 7608, HTSUS, as aluminum tubes and pipes. The entries were liquidated under a provision of heading 7616, HTSUS, as other articles of aluminum. Counsel for the protestant asserts that the parts in which FORMGRID is used must comply with
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Federal Aviation Administration (FAA) airworthiness regulations. The claim is that FORMGRID is classifiable under subheading 8803.30.00, HTSUS as parts of airplanes. Counsel maintains
that heading 7616, articles of aluminum, describes a commodity eo nomine, by name, whereas heading 8803 is a use provision. Generally, counsel concludes, use provisions are deemed more specific than eo nomine provisions. Therefore, under GRI 3(a), HTSUS, heading 8803 provides a description that is more specific than heading 7616. In addition, pursuant to Section XVII, Note 3, HTSUS, FORMGRID constitutes parts suitable for use solely or principally with airplanes of heading 8802. Finally, counsel cites several rulings that are claimed to support the subheading 8803.30.00, HTSUS, classification.
The HTSUS provisions under consideration are as follows:
7616 Other articles of aluminum:
7616.99 Other:
7616.99.50 Other
* * * *
8803 Parts of goods of heading 8801 or 8802:
8803.30.00 Other parts of airplanes or helicopters
ISSUE:
Whether FORMGRID qualifies as “parts” of heading 8803.
LAW AND ANALYSIS:
Under General Rule of Interpretation (GRI) 1, Harmonized Tariff Schedule of the United States (HTSUS), goods are to be classified according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6. GRI 2(a), HTSUS, states that incomplete or unfinished articles are to be classified as if complete or finished provided that, as imported, they have the essential character of the complete or finished article. GRI 3(a), HTSUS, states that where goods are,
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prima facie, classifiable under two or more headings the heading that provides the most specific description shall be preferred to headings providing a more general description.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the 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 thus useful in ascertaining the classification of merchandise under the System. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
Relevant ENs on p. 1566 list wings and their components (spars, ribs, cross-members) among parts of aircraft of heading 8803. With respect to the rulings cited by protestant’s counsel, HQ 953562 and HQ 953550, both dated October 7, 1993, dealt with fully equipped and operational lavatory modules for airplanes. Contoured horizontal and vertical vanes or louvres called cascade assemblies, used with the engine’s thrust reversers to reduce airspeed, were the subject of HQ 957072, dated November 9, 1995. These rulings classified discrete, identifiable articles of commerce as parts of airplanes, in subheading 8803.30.00, HTSUS.
However, FORMGRID is a material for use in fabricating wing control surfaces and other subassemblies for commercial aircraft. This merchandise would be eligible for classification in subheading 8803.30.00, HTSUS, only if it qualifies under GRI 2(a) as an incomplete or unfinished article having the essential character of a complete or finished wing control surface or other discrete aircraft subassembly. The post-importation processing to which FORMGRID is subjected in order to fabricate a complete aircraft component is not described. Counsel makes no argument, nor is there evidence in the file from which we can independently determine whether, as imported, FORMGRID has the essential character of a complete or finished aircraft part or component.
In HQ 950469, dated September 11, 1992, continuous fibrous filament material imported on spools and used for fabricating carbon disc brakes for commercial aircraft, was held to be classified in a provision of heading 5501, HTSUS, as synthetic man-made fibers or filament called tow. The ruling concluded that notwithstanding the fact the material was made to exacting aircraft industry specifications it lacked the essential character of aircraft brake linings considered parts of aircraft
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undercarriages. This was because, in its condition as imported, the material was not identifiable as an aircraft component, and could not be utilized for that purpose without substantial additional processing. Likewise, nonwoven textile fabric cured with a phenolic resin and cut into strips and subsequently joined to form a honeycomb configured plate, sheet or block, substantially similar to the FORMGRID under protest, was held to be classified in heading 3921, HTSUS, as other plates and sheets of plastics. See HQ 960254, dated August 14, 1997.
HOLDING:
Under the authority of GRI 1, the material FORMGRID is provided for in heading 7616. It is classifiable in subheading 7616.99.50, HTSUS. The protest should be DENIED.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division