CLA-2 OT:RR:CTF:TCM H055376 RM
Ms. Sharon Batkin
Global Customs & Compliance Manager
GE Energy Wind
7 Independence Pointe, Suite 300
Greenville, SC 29615
RE: Tariff Classification of Wind Turbine Blade Transport Fixtures
Dear Ms. Batkin:
This is in response to your electronic submission, dated March 03, 2009, to the National Commodity Specialists Division of U.S. Customs and Border Protection (“CBP”) in which you requested a binding ruling, on behalf of GE Energy Wind (“GE Energy”), on the tariff classification of wind turbine blade transport fixtures under the Harmonized Tariff Schedule of the United States (“HTSUS”). Your request was forwarded to this office for a response. In reaching this decision, we considered the arguments you raised in our telephone conference on April 21, 2009.
FACTS:
GE Energy proposes to import steel fixtures used to transport wind turbine generator blades. According to the exhibits submitted with your submission, the fixtures consist of a main frame (i.e., a steel cube, open on all sides, with rubber-padded clamping units in its interior) and a detachable s-shaped end frame. In use, the clamps move inward and surround the blade to protect it from cracking. The end frame is removed from the main frame and bolted to one end of the blade. Two fixtures are needed to secure a single blade (one at each end); the center portion of the blade is suspended in the air during transport.
You indicated that the fixtures would be imported in ocean shipping containers or ocean flat racks, either fully assembled and prepared for use with the blades enclosed, or disassembled and empty. The fixtures are secured to its transporting vehicle using ratcheted straps. They can be stacked and are intended for repeated use.
ISSUE:
Whether the wind turbine transport fixtures are classified in heading 8609, HTSUS, as containers specially designed and equipped for carriage by a mode of transport, or in heading 7326, HTSUS, as other articles of iron or steel.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRIs”). GRI 1 provides that the classification of goods shall be determined 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 headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The applicable 2009 HTSUS provisions are as follows:
7326 Other articles of iron or steel:
7326.90 Other:
Other:
Other:
7326.90.85 Other …
* * *
8609.00.00 Containers (including containers for the transport of fluids) specially designed and equipped for carriage by one or more modes of transport …
* * *
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the HTSUS. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989). The ENs to heading 8609, provide, in relevant part:
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. They are thus suitable for the "door-to-door" transport of goods without intermediate repacking and, being of robust construction, are intended to be used repeatedly.
The more usual type, which may be of wood or metal, consists of a large box equipped with doors, or with removable sides.
* * *
Containers usually vary in size from 4 to 145 m³ capacity. Certain types are however smaller, but their capacity is not normally less than 1 m³.
This heading excludes:
(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 their constituent material.
You submit that the wind turbine fixtures are classified in heading 8609, HTSUS, as “Containers … specially designed and equipped for carriage by one or more modes of transport.” In support, you reference the ENs to that heading and cite a Binding Tariff Information (“BTI”) from the United Kingdom which classified the fixtures at issue in heading 8609. As a threshold matter, we note that CBP considers rulings from other countries that classify identical or substantially similar merchandise as instructive, but not determinative, because they do not constitute an official interpretation of the Harmonized Tariff Schedule. See Headquarters Ruling Letter (“HQ”) 965130, dated March 27, 2002.
To be classified in heading 8609, HTSUS, an article must be (1) a container, and (2) specifically designed and equipped for carriage by one or more modes or transport. Relying on the common meaning of the term, CBP has defined “container” as “a holder or receptacle or something that receives and contains, with a capacity capable of being measured.” See HQ H025853, dated June 19, 2008, HQ W967571, dated August 16, 2006, and HQ 954859, dated November 4, 1993. In HQ W967571, we explained that to have a measurable capacity, the container must have some kind of sides or doors which limit the volume it can store. Moreover, with regard to the second requirement, the ENs to heading 8609, HTSUS, indicate that “[t]hese containers …. are equipped with fittings (hooks, rings, castors, supports, etc.) to facilitate the handling and securing on the transporting vehicles, aircraft or vessel.”
In HQ H025853, CBP considered the classification of steel shipping racks designed to transport work trucks. The racks in that case were flat pallets with collapsible posts on each corner (the posts enabled the stacking of several racks). They contained forklift pockets for ease of transport and tire-sized grooves to secure the trucks. In that ruling, CBP determined that racks did not conform to the common meaning of the term “container” because they lacked walls or sides to enclose the cargo and thus, their internal volumes could not be measured. As such, CBP classified the racks according to their constituent material, steel, in heading 7326, HTSUS.
Similarly, the fixtures under consideration are not “containers,” as defined above. Namely, they lack sides or doors which limit the volume they can store. Though the end frame may be removed and placed at the tips of the blades, their carrying capacity is dictated by the length of the blades they carry and not by their steel structure. Moreover, we have not been presented with sufficient evidence to prove that the fixtures are “specially designed and equipped for carriage by one or more modes of transport.” You merely state that the fixtures are secured to the vessel using ratcheted straps. It follows that the fixtures are not “containers … specially designed and equipped for carriage by one or more modes of transport” of heading 8609, HTSUS. They are classified according to their constituent material, in heading 7326, HTSUS, as “Other articles of iron or steel.” See EN 86.09.
HOLDING:
By application of GRI 1, the wind turbine blade transport fixtures are classified in heading 7326, specifically in 7326.90.85, HTSUS, which provides for “Other articles of iron or steel: Other: Other: Other: Other.” The 2009 column one, general rate of duty is 2.9 percent ad valorem.
Duty rates are provided for convenience only and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/tata/hts/.
A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Gail A. Hamill, Chief
Tariff Classification and Marking Branch