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HQ 958295




FEBRUARY 2, 1998

CLA-2 RR:CR:GC 958295 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8411.99.90

Kathleen M. Murphy, Esq.
Katten, Muchin & Zavis
525 West Monroe Street, Suite 1600
Chicago, Illinois 60661-3693

RE: Mounting Base and Enclosure for Marine Gas Turbine; Fabricated Structural Components for Acoustic, Thermal and Vibration Protection; Parts of Gas Turbines; Articles of Iron or Steel, Subheading 7326.90.90, Bauerhin Technologies v. U.S.; Section XVI, Note 2; HQ 955501 Revoked

Dear Ms. Murphy:

In HQ 955501, dated March 15, 1994, we responded to Internal Advice 91/93, initiated by your client, General Electric Aircraft Engines, through the District Director of Customs, Middleburg Hts., Ohio, concerning the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of a fabricated steel base and acoustic steel enclosure. In that ruling we rejected the contention that these articles were classifiable as parts of other gas turbines, in subheading 8411.99.90, HTSUS, and held that they were classifiable as other articles of iron or steel, in subheading 7326.90.90 (now 85), HTSUS.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of HQ 955501 was published on October 18, 1995, in the Customs Bulletin, Volume 29, Number 42.

In that notice, Customs proposed an alternative classification as structures and parts of structures of iron or steel, in subheading 7308.90.95, HTSUS. We have thoroughly reviewed all relevant materials in this case, and are now of the opinion that subheading 8411.99.90, HTSUS, does, in fact, represent the correct classification.

FACTS:

Literature describes a gas turbine support structure or base (the Base) and an acoustic steel structure (the Enclosure), both fabricated essentially from carbon and stainless steel. These articles were assembled in the United States with a simple-cycle, two-shaft gas turbine into the LM 2500 Marine Propulsion System, which functions as a power source for naval vessels.

The Base is a welded mounting base consisting of an 18 inch high double webbed side and end beams and a 4 inch thick floor made from top and bottom steel sheets separated by angles and beams. The Enclosure is a four-sided structure with roof, all of welded steel panels, and filled with an insulating material. These articles weigh 48,500 lbs. with shock mounts and displace 315 x 104 x 77.5 inches of ship space.

The Base permits the gas turbine to be mounted in the vessel's hold and affords anti-shock and vibration protection. The Enclosure provides additional stabilization as well as acoustic and thermal protection. It will be fitted after importation with lighting, heating apparatus and doors, to permit worker access to the turbine. The literature describes these components as important in anti-submarine warfare as they reduce the vessel's water-borne noise level and stabilize the turbine in case of collision or torpedo attack. Noise attenuation is also important for crew members working in the enclosed environment of the vessel's hold.

In a submission, dated January 27, 1995, and at a meeting in our office on June 15, 1995, you maintain that these components are classifiable as other parts of gas turbines, in subheading 8411.99.90, HTSUS. The contention is that these are specially designed and fabricated articles for use solely with the LM 2500 gas turbine Marine Propulsion System and have no other use, and that the turbine cannot be considered safe and operational without them. In submissions, dated July 20 and September 12, 1995, and in a submission in response to the October 18, 1995, notice published in the Customs Bulletin, you maintain that these components have mechanical characteristics that serve to qualify them as parts for tariff purposes. Specifically, the 5-sided Enclosure is said to form an inlet plenum at the front of the gas turbine to direct air flow to the compressor section of the unit at the necessary velocity and direction to permit the turbine to function properly. The roof panel of the Enclosure is fitted with a flexible attachment designed to connect the gas turbine to the vessel's inlet air duct and ventilation system.

In addition, the assembled Support Structure and Enclosure are said to be fitted or designed to be fitted with hoses and electrical cables to supply fuel and lubricants to the turbine and with sensors and switches for de-icing, fire detection and fire extinguishing equipment.

The provisions under consideration are as follows:

7308 Structures and parts of structures, of iron or steel:

7308.90 Other:

Other:

7308.90.95 Other...5.1 percent

7326 Other articles of iron or steel:

7326.90 Other:

Other:

7326.90.85 Other...5.1 percent

8411 Turbojets, turbopropellers and other gas turbines:

Parts:

8411.99 Other:

8411.99.90 Other...3.4 percent

ISSUE:

Whether the Base and the Enclosure are parts of gas turbines.

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined 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.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, 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).

As to the "parts" issue, you correctly state Customs position that articles which are identifiable as parts of machines or apparatus of Chapters 84 and 85 are classifiable in accordance with Section XVI, Note 2, HTSUS. Specifically, Note 2(b) covers parts that are provided for in the same heading as the machine or apparatus with which they are solely or principally used. However, for Note 2(b) to be applicable, the status of an article as a part must first be established.

In submissions dated January 29, 1996, and June 11, 1997, you maintain that excessive vibrations and thermal expansion, particularly in a marine environment, lead to misalignment of the turbine's rotor with the vessel's drive train, a so-called "corn cob effect." Thus, the gas turbine would almost immediately self-destruct without the Base and Enclosure which provide the structural stability that permits the gas turbine to operate effectively. Articles that are integral, constituent components of another article, without which that article could not operate in its intended capacity, have been held to be parts under the HTSUS. See United States v. Willoughby Camera Stores, Inc., 21 CCPA 322 (1933), Bauerhin Technologies Ltd. Et al v. United States, Slip Op. 95-206 (Ct. Int'l Trade, decided December 26, 1995), aff'd. Slip Op. 96-1275 (Fed. Cir., decided April 2, 1997), and related cases.

It is important that any announced rule of law be applied carefully, in the context of the particular facts under consideration. In this case, the Base and Enclosure are unique articles of commerce the tariff status of which must be evaluated in the context of their singular relationship with a gas turbine to form the LM 2500 Marine Propulsion System. Based on the particular facts of this case, it is Customs position that the Base and Enclosure are integral, constituent and component parts necessary to the completion of and proper operation of LM 2500 Marine Propulsion System.

HOLDING:

Under the authority of GRI 1, the Base and Enclosure, entered unassembled, are provided for in heading 8411. They are classifiable in subheading 8411.99.90, HTSUS.

HQ 955501, dated March 15, 1994, is revoked. In accordance with 19 U.S.C. 1625(c)(1), this ruling will become effective 60 days after its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to 19 U.S.C. 1625(c)(1) does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations (19 CFR 177.10(c)(1)).

Sincerely,

John Durant, Director
Commercial Rulings Division


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