CLA-2 CO:R:C:G 083847 JLJ, 830328
Mr. Richard A. Lidinsky, Jr.
Vice President, Governmental Affairs
Sea Containers America Inc.
1440 New York Avenue, N.W., Suite 430
Washington, D.C. 20005
RE: Tariff classification of vulcanized portable rubber bags
Dear Mr. Lidinsky:
You requested a reconsideration of New York letter 830328 of
June 29, 1988, which covered the tariff classifications of
certain refrigerated tank containers and rubber carriage bags
under the Harmonized Tariff Schedule of the United States
Annotated (HTSUSA).
FACTS:
New York letter 830328 classified a refrigerated tank
container under the provision for containers (including
containers for the transport of fluids) specially designed and
equipped for carriage by one or more modes of transport, in
subheading 8609.00.0000, which is a duty-free provision. The
same letter classified rubber carriage bags (also called flexible
fuel storage tanks) made of synthetic rubber under the provision
for other articles of vulcanized rubber other than hard rubber,
other, other, other, other, in subheading 4016.99.50, HTSUSA,
dutiable at the rate of 5.3 percent ad valorem. The rubber
carriage bags are roughly rectangular in shape when empty and
roughly cylindrical when full, in various sizes accommodating
capacities of up to 30,000 gallons. The bags may be used to
store fuel, water or other liquids. Both types of merchandise
are imported from England.
You claim that both the refrigerated containers and the
vulcanized portable rubber bags should be classified as
containers in subheading 8609.00.0000, HTSUSA, or under the
provision for substantial containers and holders...of a class
specified by the Secretary of the Treasury as instruments of
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international traffic, repair components for containers of
foreign production which are instruments of international
traffic, and accessories and equipment for such containers,
whether the accessories and equipment are imported with a
container to be reexported separately or with another container,
or imported separately to be reexported with a container, in
subheading 9803.00.50, HTSUSA, which is a duty-free provision.
(We noted above that the refrigerated containers were classified
in subheading 8609.00.0000, HTSUSA, in New York Letter 830328,
which also stated that they were eligible for classification as
instruments of international trade in subheading 9803.00.50,
HTSUSA, if they were used in international traffic. You state
however, that the imported refrigerated containers and rubber
bags will first be used in domestic service within the United
States, then in export--i.e., international--traffic.)
We note that information before us indicates that the rubber
containers may be used principally for the storage of fuel rather
than the transport of fuel.
ISSUE:
Is the instant merchandise eligible for classification as
containers in subheading 8609.00.0000, HTSUSA, or as instruments
of international traffic in subheading 9803.00.50, HTSUSA?
LAW AND ANALYSIS:
19 C.F.R. 10.41(a)(3) states that"...'instruments of
international traffic' includes the normal accessories and
equipment imported with any such instrument which is a
'container' as defined in Article 1 of the Customs Convention on
Containers." Article 1 of the convention says that "...the term
container' shall mean an article of transport equipment (lift-
van, movable tank or other similar structure):
(i) of a permanent character and accordingly strong enough
to be suitable for repeated use;
(ii) Specially designed to facilitate the carriage of goods,
by one or more modes of transport, without intermediate
reloading;
(iii) Fitted with devices permitting its ready handling,
particularly its transfer from one mode of transport to
another;
(iv) So designed to be easy to fill and empty; and
(v) Having an internal volume of one cubic metre or more
and shall include the normal accessories and equipment
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of the container, when imported with the container, the
term 'container' includes neither vehicles nor
conventional packing;...."
While the instant merchandise might meet the definition of
"container" set forth above, it cannot be entered as an
instrument of international traffic because of its intended
domestic use. Instruments of international trade must be just
that--instruments used in international traffic. The intended
domestic (i.e., within the United States) use of the merchandise
disqualifies both the refrigerated containers and the rubber bags
from classification as instruments of international trade in
subheading 9803.00.50, HTSUSA.
It remains to be decided whether the portable rubber bags
are eligible for classification as containers (including
containers for the transport of fluids) specially designed and
equipped for carriage by one or more modes of transport, in
subheading 8609.00.00, HTSUSA. In order to be classified in
Heading 8609, HTSUSA, the principal use of the containers must be
for transport. The Explanatory Notes to Heading 8609, state as
follows:
These containers (including lift vans) are packing
receptacles specially designed and equipped for
carriage by one or more modes of transport (e.g., road,
rail, water or air). They are equipped with fittings
(hooks, rings, castors, supports, etc.) to facilitate
handling and securing on the transporting vehicle,
aircraft or vessel....
The more usual type, which may be of wood or metal,
consists of a large box equipped with doors, or with
removable sides. The principal types of container
include:
* * * * *
(3) Containers (generally cylinderical) for the
transport of liquids or gases. These containers fall
in this heading only if they incorporate a support
enabling them to be fitted to any type of transporting
vehicle or vessel; otherwise they are classified
according to their constituent material.
The Explanatory Notes for Headng 8609 also emphasize that
containers classified in this heading are "specially designed and
equipped for carriage by one or more modes of transportation,"
stating specifically that this heading excludes:
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(a) Cases, crates, etc., which though designed for the
"door-to-door" transport of goods are not specially
constructed as described above to be secured to the
transporting vehicle, aircraft or vessel; these are
classified according to the component material.
We are unable to ascertain whether the instant portable
rubber bags incorporate such supports. Based on the Explanatory
Notes, if the instant bags incorporate supports enabling them to
be fitted to any type of transporting vehicle or vessel, then
they are classified in heading 8609, HTSUSA, in the provision for
containers in subheading 8609.00.0000, HTSUSA. If the instant
bags are not principally used for transport or do not incorporate
such supports, then they are classified according to their
constituent material in the provision for other articles of
vulcanized rubber other than hard rubber, other, other,
containers, with or without their closures, of a kind used for
the packing, transporting or marketing of merchandise, in
subheading 4016.99.03, HTSUSA, dutiable at the rate of 3 percent
ad valorem if principally used for the transport of fuel, or in
subheading 4016.99.50, HTSUSA, dutiable at the rate of 5.3
percent ad valorem if principally used for the storage of fuel.
HOLDING:
Inasmuch as both the refrigerated tank containers and the
rubber bags are to be used in domestic service, they are not
eligible for classification in subheading 9803.00.50, HTSUSA.
The refrigerated containers are classified in subheading
8609.00.0000, HTSUSA. The rubber bags are classified, according
to the Explantory Notes, in subheading 8609.00.0000, HTSUSA, if
they are specially designed and constructed to be fitted to the
transporting vehicle (i.e, if they incorporate the above-
mentioned supports) or in subheading 4016.99.03, HTSUSA, or
subheading 4016.99.50, HTSUSA, depending upon their principal
use, if they do not incorporate such supports.
Sincerely,
John Durant, Director
Commercial Rulings Division
JLJohnson:tj:typed 04/25/89
6cc: A.D. N.Y. (Attn: Bob De Soucey)
2cc: C.I.E.
Jones library
name: 083847JLJ