• HQ H258808
• Oct 20, 2020

• Type : Classification • HTSUS : 3926.30.50
•  Related:   953376; 950059; 956998; 959963; 088944; 811968; 963663; E83586; 963663; W967544; H076723; H047742; H173197   

CLA-2 OT:RR:CTF:EMAIN H258808 PF

Port DirectorU.S. Customs and Border ProtectionPort of Seattle
1000 Second Avenue, Suite 2200
Seattle, WA 98104

Re: Protest and Application for Further Review No: 3001-14-100269; Classification of a floor seal assembly and a lavatory trim

Dear Port Director:

The following is our decision as to Protest and Application for Further Review (“AFR”) No. 3001-14-100269, which was filed on August 20, 2014 on behalf of Jamco America, Inc. (“protestant”). The protest pertains to the classification of a floor seal assembly and a lavatory trim under the Harmonized Tariff Schedule of the United States (“HTSUS”).

The subject merchandise was entered by protestant on November 22, 2013 at the Seattle-Tacoma International Airport. On June 13, 2014, CBP liquidated the floor seal assembly under subheading 3925.90, HTSUS, which provides for “Builders’ ware of plastics, not elsewhere specified or included: Other” and liquidated the lavatory trim under subheading 3926.30.50, HTSUS, which provides for “Other articles of plastic and articles of other materials of headings 3901 to 3914: Fittings for furniture, coachwork or the like: Other.”

On August 20, 2014, the protestant filed a protest and AFR regarding the tariff classification of the floor seal assembly and lavatory trim. Protestant contends that the floor seal assembly and the lavatory trim should be classified in subheading 8803.30.00, HTSUS, which provides for “Parts of goods of heading 8801 or 8802: Other parts of airplanes or helicopters.” In the alternative and with respect to the floor seal assembly, the protestant contends that it should be classified in subheading 3926.90.45, HTSUS, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Gaskets, washers and other seals.” In the alternative and with respect to the lavatory trim, the protestant maintains that it should be classified in subheading 3926.90.99, HTSUS, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other.”

In reaching our determination, we have considered the protest, supplemental protest submitted on October 1, 2014, and supplemental information submitted via e-mail between April 20, 2015 and October 5, 2018. We also considered arguments presented during a meeting held on May 6, 2020.

FACTS: The merchandise at issue consist of a floor seal assembly and a lavatory trim utilized in commercial passenger aircraft. The floor seal assembly, identified as Part No. AFLS000015A0018, is made of aluminum and plastic that is installed on the galleys of Boeing 787 aircraft. The plastic content of the floor seal assembly predominates by both weight and volume. The floor seal assembly attaches to the inner galley wall of a Boeing 787 and seals the gap between the walls and the floor. The floor seal is secured by 5 screws and washers in order to “lock” the piece into place. The floor seal assembly functions as a bumper to protect the floor from impact from food and drink carts. Protestant has stated that the floor seal assembly “is used solely for aesthetic purposes to ‘seal the gap’ between the floor and wall of an airplane galley.”

The lavatory trim, identified as Part No. PEXA009037A003, is a trim piece that snaps and clicks in place and is used on Boeing 787 lavatories. The trim piece is installed on the side panels of the lavatory doors for “strictly aesthetic purposes” to cover the edge of the door panel. The trim piece is comprised of noryl plastic.

ISSUES:

Whether the floor seal assembly is properly classified as builders’ ware of plastics of heading 3925, HTSUS, as other articles of plastics of heading 3926, HTSUS, or as parts of goods (aircraft) of heading 8802, HTSUS.

Whether the lavatory trim is properly classified as other articles of plastics of heading 3926 or as parts of goods (aircraft) of heading 8802, HTSUS.

LAW AND ANALYSIS:

Initially, we note that the matters protested are protestable under 19 U.S.C. §1514(a) (2) as decisions on classification. The protest was timely filed, within 180 days of liquidation of the first entry. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)). Further Review of Protests No. 3001-14-100269 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve questions of law or fact, which have not been ruled upon by the Commissioner of Customs or his designee, or by the courts.  Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (“GRIs”) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.

GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.

The 2013 HTSUS headings under consideration are as follows:

3925 Builders’ ware of plastics, not elsewhere specified or included

3926 Other articles of plastics and articles of other materials of heading 3901 to 3914

8803 Parts of goods of heading 8801 or 8802

Note 1 to Chapter 39, HTSUS, defines “plastics” as:

[T]hose materials of headings 3901 to 3914 which are or have been capable, either at the moment of polymerization or at some subsequent stage, of being formed under external influence (usually heat and pressure, if necessary with a solvent or plasticizer) by molding, casting, extruding, rolling or other process into shapes which are retained on the removal of the external influence.

Throughout the tariff schedule, any reference to “plastics” also includes vulcanized fiber. The expression, however, does not apply to materials regarded as textile materials of section XI.

Note 2 to Chapter 39 provides, in pertinent part:

This Chapter does not cover:

(t) Parts of aircraft or vehicles of Section XVII;

Note 3 to Section XVII provides:

References in Chapters 86 to 88 to “parts” or “accessories” do not apply to parts or accessories which are not suitable for use solely or principally with the articles of those Chapters. A part or accessory which answers to a description in two or more of the headings of those Chapters is to be classified under that heading which corresponds to the principal use of that part or accessory.

Note 11 (ij) to Chapter 39 states that the provision for builders' ware of plastics in heading 3925 applies only to the following articles, not being products covered by any of the earlier headings of subchapter II:

Fittings and mountings intended for permanent installation in or on doors, windows, staircases, walls or other parts of buildings, for example, knobs, handles, hooks, brackets, towel rails, switch plates and other protective plates.

In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).

The EN to heading 3925, HTSUS, states, in pertinent part:

This heading applies only to the articles mentioned in Note 11 to this Chapter.

The ENs to Heading 3926, HTSUS, provide, in relevant part: This heading covers articles, not elsewhere specified or included, of plastics (as defined in Note 1 to the Chapter) or of other materials of headings 39.01 to 39.14.

The EN to Section XVII, which covers vehicles, aircraft, vessels and associated transport equipment, and includes Chapter 88, provides the following in subpart (III) Parts and Accessories:

(III) Parts and Accessories

It should, however, be noted that these headings apply only to those parts or accessories which comply with all three of the following conditions:

They must not be excluded by the terms of Note 2 to this Section (see paragraph (A) below). And They must be suitable for use solely or principally with the articles of chapter 86 to 99 (see paragraph (B) below). And They must not be more specifically included elsewhere in the Nomenclature (see Paragraph (C) below).

Paragraph (A) noted above, provides the following:

Parts and accessories excluded by Note 2 to Section XVII.

This note excludes the following parts and accessories, whether or not they are identifiable as for the articles of this Section:

Parts of general use as defined in Note 2 to Section XV … and similar goods of plastics fall in Chapter 39) ….

Paragraph (B) noted above, provides the following:

(B) Criterion of sole or principal use.

Parts and accessories classifiable both in Section XVII and in another Section.

Under Section Note 3, parts and accessories which are not suitable for use solely or principally with the articles of Chapters 86 to 88 are excluded from those Chapters.

The effect of Note 3 is therefore that when a part or accessory can fall in one or more other Sections as well as in Section XVII, its final classification is determined by its principal use.…

The EN 88.03 provides the following in relevant part:

This heading covers parts of goods falling in heading 88.01 or 88.02, provided the parts fulfill both the following conditions:

They must be identifiable as being suitable for use solely or principally with the goods of the above-mentioned headings; and They must not be excluded by the provisions of the Notes to Section XVII (see the corresponding General Explanatory Note [above]).

Protestant claims that the floor seal assembly and the lavatory trim are classified in heading 8803, HTSUS, as parts of aircraft of heading 8802, HTSUS. In the alternative, the protestant contends that the floor seal assembly is classified in subheading 3926.90, HTSUS, as other articles of plastics.

Note 2 to Section XV, HTSUS, provides, in relevant part, as follows: 2. Throughout the tariff schedule, the expression “parts of general use” means: … (a) Articles of heading … 8302.

(Emphasis added).

Note 2 to Section XVII, HTSUS, which covers Chapter 88, provides, in relevant part, that:

The expressions “parts” and “parts and accessories” do not apply to the following articles, whether or not they are identifiable as for the goods of this section:

Parts of general use, as defined in note 2 to section XV, of base metal (section XV) or similar goods of plastics (chapter 39).

(Emphasis added).

Accordingly, we must first consider whether the subject merchandise is a “part of general use” as defined by Note 2(a) to Section XV (i.e., prima facie classifiable under heading 8302, HTSUS). If so, then it would be precluded from classification in Chapter 88 per Note 2 to Section XVII, HTSUS. Explanatory Note to heading 8302, HTSUS, states that this heading covers “general purpose classes of base metal accessory fittings and mountings, such as are used largely on … doors … Goods within such general classes remain in this heading even if they are designed for particular uses (e.g., door handles or hinges for automobiles). The heading does not, however, extend to goods forming an essential part of the structure of the article, such as window frames or swivel devices for revolving chairs.” EN 83.02 further provides that this heading includes: … Mountings, fittings and similar articles suitable for motor vehicles (e.g., motor cars, lorries or motor coaches), not being parts or accessories of Section XVII. For example: made up ornamental beading strips; foot rests; grip bars, rails and handles; fittings for blinds (rods, brackets, fastening fittings, spring mechanisms, etc.); interior luggage racks; window opening mechanisms; specialised ash trays; tailboard fastening fittings …

Heading 8302, HTSUS, provides for base metal mountings, fittings and similar articles suitable for coachwork or the like. In HQ W967544, dated June 24, 2005, CBP defined the terms “mountings” and “fittings.” There, because the HTSUS and ENs did not define these terms, CBP consulted lexicographic sources and stated that:

Webster’s New World Dictionary, Second College Edition, 1974 defines the word fitting as: ...2. a small part used to join, adjust, or adapt other parts, as in a system of pipes 3. [pl.] the fixtures, furnishings or decoration of a house, office, automobile, etc.”

“The web site Dictionary.com defines the word mounting when used as a noun as: 1. The act or manner of mounting. 2. A means of conveyance, such as a horse, on which to ride. 3. An opportunity to ride a horse in a race. 4. An object to which another is affixed or on which another is placed for accessibility, display, or use, especially: a. A glass slide for use with a microscope. b. A hinge used to fasten stamps in an album. c. A setting for a jewel. d. An undercarriage or stand on which a device rests while in service.”

See HQ W967544. See also HQ H076723, dated November 24, 2010.

Furthermore, in Totes, Inc. v. United States, 69 F.3d 495 (Fed. Cir. 1995), the Federal Circuit stated that “as applicable to classification cases, ejusdem generis requires that the imported merchandise possess the essential characteristics or purpose that unite the articles enumerated eo nomine [by name] in order to be classified under the general terms.” Totes, 69 F.3d. 495, 498. CBP has applied the doctrine of ejusdem generis to heading 8302, HTSUS, to determine that railway vehicles, aircraft, and vessels share the essential characteristics or purposes with coachwork because they are all used for transport. In HQ 953376, dated May 14, 1993, for example, CBP stated that “although not specifically named, boat fittings would be included within the heading, because boats are for water conveyance which is similar to land conveyance by automobiles.” See HQ 953376. See also HQ H076723; HQ 950059, dated October 21, 1991; HQ 956998, dated November 28, 1994; HQ 959963, dated June 10, 1997; HQ 088944, dated July 22, 1991. As a result, fittings for railway vehicles, aircraft and vessels are classified in heading 8302, HTSUS.

In addition, EN 83.02 states that this heading does not extend to goods forming an essential part of the structure of the article, such as window frames or swivel devices for revolving chairs. See EN 83.02. Accordingly, CBP has classified mountings and fittings in heading 8302, HTSUS, where those articles’ structural significance was subordinate to their mounting/attachment function. In HQ H047742, dated September 3, 2009, for example, CBP classified an upper strut mount/bearing plate, which was part of an automobile’s strut, in heading 8302, HTSUS. This item served to mount the strut and also allowed the strut to pivot, dampened movement of the upper end of the strut, and transferred vehicle load to the strut and spring. Furthermore, it was the strut that provided the structural support for an automotive suspension system. Thus, the mount/bearing plate served the functions of merchandise of heading 8302, HTSUS- i.e., attaching, securing, fitting, supporting or binding two articles together- without, by itself, providing the structural support for the suspension system. See HQ H047742.

The instant floor seal assembly and lavatory trim are not a structural part of the aircraft. The floor seal assembly attaches to the inner galley wall of a Boeing 787 and is secured by screws and washers in order to “lock” the piece into place and the lavatory trim snaps and clicks into place and is installed on the side panels of the lavatory doors. As described by Protestant, the floor seal assembly and lavatory trim are used to join or adapt other parts, and are objects to which another is affixed. Based on the characteristics of the floor seal assembly and lavatory trim, we find that they meet the term “fittings.” Thus, the floor seal assembly and lavatory trim are prima facie classifiable under heading 8302, HTSUS.

We note that “parts for general use” of heading 8302, HTSUS, extend to those parts made of plastic. Accordingly, the floor seal assembly and lavatory trim fall within the terms of “parts for general use” of Chapter 39, HTSUS. Therefore, the floor seal assembly and lavatory door trim, which are made of plastic, are excluded from being classified in heading 8803, HTSUS, pursuant to Note 2 to Section XVII. Moreover, since the floor seal assembly and the lavatory trim fittings are made of plastic and are not provided for more specifically elsewhere, they are classified in heading 3926, HTSUS, and specifically in subheading 3926.30.50, HTSUS, which provides for other fittings for coachwork.

We also note that CBP classified the floor seal assembly in subheading 3925.90, HTSUS, which provides for “Builders’ ware of plastics, not elsewhere specified or included: Other.” However, Legal Note 11 to Chapter 39 states that heading 3925, HTSUS, applies to only a select list of named articles. The floor seal assembly is not similar to the articles described in the legal note which describes builders’ ware. The floor seal assembly, attaches to the inner galley wall of an airplane and seals the gap between the walls and the floor and serves as a bumper to protect the floor against impacts from food and drink carts. It does not provide structural support or allow for movement. Its only other function is to protect the wall and floor from impacts from food and beverage carts. There is also no indication that the floor seal assembly is used in buildings. As a result, the floor seal assembly does not meet the requirements of legal note 11 to chapter 39 for classification in heading 3925. Based on the language of the heading, the floor seal assembly is classified in heading 3926, HTSUS, as discussed above.

In Bauerhin Technologies Limited v. United States, 19 CIT 1441, 914 F. Supp. 554 (1995), aff’d 110 F.3d 774 (Fed. Cir. 1997), the U.S. Court of International Trade (“CIT”) pointed out that there are two distinct lines of cases defining the word “part” in the tariff. Starting with United States v. Willoughby Camera Stores, Inc. (“Willoughby”), 21 C.C.P.A. 322, 324, T.D. 46851 (1933), this line of cases holds that a part of an article “is something necessary to the completion of that article without which the article to which it is to be joined, could not function as such article.” Another line of cases evolved from United States v. Pompeo, 43 C.C.P.A. 9, 13-14, C.A.D. 602 (1955), where the Court held that a device may be a part of an article even though its use is optional and the article will function without it, if the device is dedicated for use upon the article, and, once installed the article will not operate without it. In addition, the definition of “parts” and was discussed in Rollerblade, Inc. v. United States, 116 F. Supp. 2d 1247 (Ct. Int’l Trade 2000), aff’d 282 F.3d 1349 (Fed. Cir. 2002). In that case, the United States Court of Appeals for the Federal Circuit defined parts as “an essential element or constituent; integral portion which can be separated, replaced, etc.” Id. at 1353 (citing Webster’s New World Dictionary 984 (3d College Ed. 1988)). The Court also noted that a part or accessory must also bear a direct relationship to the primary article. Rollerblade, Inc. v. United States, supra at 1253-54.

The CIT more recently considered the nature of “parts” under the HTSUS when it addressed the issue of whether two vase-shaped glass structures were classifiable as glassware in heading 7013, HTSUS, or as parts of lamps in heading 9405, HTSUS. Pomeroy Collection, Ltd., v. United States, 783 F. Supp. 2d 1257, No. 11-78 (Ct. Int’l Trade 2011).  The CIT found that the first article was classified in heading 9405 as a part of lamp, because “[w]hen imported, the claimed article is dedicated solely for use in such article, and, when applied to that use, the claimed part meets the Willoughby test.” Id. at 1261-1262.  In Pomeroy, the court found that the first article satisfied the Willoughby test because the hurricane lamp “clearly could not function without the first article in question” since the lamp relied upon the glass structure to hang upon. Id. at 1262.  The Court found that the second glass structure satisfied the Pompeo test because the evidence showed that the glass structure contained the flame and enabled the candles to remain lit and to prevent open flames. Thus, the second article at issue also satisfied the Willoughby precedent, because “when applied to that use,” the lamp could not function without the glass structures. Id.  In other words, Pomeroy clarifies the existing precedent by setting forth a two prong test which must be satisfied in order for an article to merit classification as a part under the HTSUS: (1) the article must be dedicated solely for use with the product it claimed to be a part of and, (2) when applied to that use, the article cannot function without the article at issue. 

Thus, under Pomeroy’s two-part test, a part must be both solely or principally used with the primary article and essential to the proper function and use of that article. Applying this test, the subject floor seal assembly and lavatory trim are not designed as “integral, constituent part” of the aircraft on which it is to be used. The floor seal assembly and lavatory trim are not “dedicated irrevocably” and “solely for use” with an aircraft. The floor seal assembly and lavatory trim do not affect the operation of an aircraft. They also do not impact, affect, improve or enhance the functionality of an aircraft. Moreover, they are not an integral, constituent component, without which, the aircraft could not function as it is intended to function. The floor seal assembly is solely used as a bumper to protect the floor from impact from food and drink carts. The lavatory trim, which snaps and clicks in place, and is used on aircraft lavatories and provides minimal overall utility. The protestant acknowledges as much in its submission where it states, the floor seal assembly is “is used solely for aesthetic purposes to ‘seal the gap’ between the floor and wall of an airplane galley and “[t]he trim piece is installed on the side panels of the lavatory doors for strictly aesthetic purposes to cover the edge of the door panel.” Therefore, the instant floor seal assembly and lavatory trim are not parts of aircraft of heading 8803, HTSUS. Accordingly, they are not excluded by Note 2 to Chapter 39, HTSUS.

Protestant cites to Headquarters Ruling (“HQ”) 963663, dated July 30, 2001, New York Ruling (“NY”) E83586, dated June 28, 1999, and NY 811968, dated June 29, 1995, in support of classification of the floor seal assembly and lavatory trim in heading 8803, HTSUS. In HQ 963663, CBP concluded that aluminum rails, drawers and latches for an airplane galley were classified in heading 8803, HTSUS, because the articles were suitable for use solely or principally with aircraft of heading 8802, HTSUS. Similarly, in NY E83586, CBP ruled that aluminum, steel or plastic piece parts of harness assemblies were solely or principally used in aircraft seatbelt harness assemblies and were classified in heading 8803, HTSUS. In NY 811968, CBP determined that an overhead stowage bin visor which was intended to be used in overhead storage compartments to prevent articles from falling was classified in heading 8803, HTSUS.

The rulings cited by the protestant are distinguishable. The merchandise in HQ 963663 was determined to be integral parts of galleys of an aircraft. In addition, the articles in HQ 963663 were not found to be parts of general use and therefore not excluded from heading 8803. Similarly in NY E83586, the articles at issue were found to be solely or principally used in aircraft seatbelt harness assemblies and were certified for use in civil aircraft. Unlike the floor seal assembly and lavatory trim, the parts of the seatbelt harness assemblies were integral and constituent components of an aircraft inasmuch as securing passengers in their seats augments the function of transporting them. Similarly, the overhead stowage bin visor in NY 811968 which prevented articles from falling that may have shifted during flight, enhanced the functionality of the aircraft. Unlike the merchandise in the cited cases, the instant merchandise is not prima facie classifiable under heading 8803, HTSUS, as explained above.

A more applicable precedent, issued after the CIT decision in Pomeroy, is HQ H173197, dated November 13, 2012.  HQ H173197 concerned the classification of woven fabric curtains specially designed for various models of civil aircraft. The curtains were sized and shaped to fit specific aircraft and locations on those aircraft, to be used as dividers on aircraft to separate seating classes within the plane, divide the galley area from passenger areas, provide sound dampening for crew rest areas, provide privacy for handicap lavatories, and for other similar uses. CBP rejected classification for the curtains as parts of aircraft in heading 8803, HTSUS, because although the curtains were used in airplanes, they did not contribute to the function of the aircraft.

HOLDING:

By application of GRI 1, the floor seal assembly and lavatory trim, are classified in heading 3926. By application of GRI 6, the floor seal assembly and lavatory trim are classified in subheading 3926.30.50 of the 2013, HTSUS, which provides for “Other articles of plastic and articles of other materials of headings 3901 to 3914: Fittings for furniture, coachwork or the like: Other.” The 2013 general column one, rate of duty is 5.3% ad valorem.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.

Since the rate of duty under the classification indicated above is the same as the liquidated rate, you are instructed to DENY the Protest in full.

In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP 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 Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP website at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.


Sincerely,

Craig T. Clark, Director
Commercial and Trade Facilitation Division