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HQ 956637

August 29, 1994

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


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).


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 - 2 -
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.


Whether the self-contained public bathrooms are classifiable as prefabricated buildings under subheading 9406.00.80, HTSUS.


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 - 3 -

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 - 4 -
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 - 5 -
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.


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.


John Durant, Director

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