CLA-2 RR:CTF:TCM 967571 KBR
Area Port Director
Bureau of Customs and Border Protection
9901 Pacific Highway
Blaine, WA 98230
RE: Internal Advice (IA) 05/005; Platforms For The Transportation Of Goods
Dear Area Port Director:
The following is our decision regarding your memorandum dated February 18, 2005, forwarding Internal Advice (IA) 05/005 which was initiated by counsel on behalf of Pacific Northwest Equipment, Inc. (“Pacific”), and which concerns the classification of steel platforms for the transportation of goods under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). In reaching our decision we also considered the submission made on behalf of Pacific, received on May 15, 2006.
FACTS:
The subject articles are steel platforms for the transportation of goods. The platforms measure 23’ 10.5” x 8’ 6” x 8’ ¾”. The platforms are rated to handle a maximum gross weight of 67,200 pounds, a tare weight of 5,000 pounds, and a maximum payload of 62,200 pounds. The platforms have one pair of forklift pockets and one pair of end wings. The platforms will be suitable for use on the road, rail or sea. The platforms will be constructed with two side rails, three longitudinal members, two end rails, one pair of end wings, one pair of forklift pockets, eighteen lashing fittings, four corner posts and four corner fittings.
In December 2004, Pacific imported shipments of the platforms under subheading 8609.00.0000, HTSUSA. On January 20, 2005, CBP issued a CF 29 changing the classification of the platforms to subheading 7326.90.8587, HTSUSA.
Pacific believes that the platforms should be classified in subheading 8609.00.0000, HTSUSA, as “Containers (including containers for the transport of fluids) specially designed and equipped for carriage by one or more modes of transport.” Your office believes that the platforms should be classified in subheading 7326.90.8587, HTSUSA, as “Other articles of iron or steel: Other: Other: Other: Other: Other.”
ISSUE:
Should the platforms be classified as containers or as other articles of iron or steel under the HTSUSA?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI.
The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. The ENs, although neither dispositive nor legally binding, facilitate classification by providing a commentary on the scope of each heading of the HTSUSA, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.
The HTSUSA provisions under consideration are as follows:
7326 Other articles of iron or steel:
7326.90 Other:
Other:
Other:
7326.90.85 Other:
7326.90.8587 Other
8609.00.0000 Containers (including containers for the transport of fluids) specially designed and equipped for carriage by one or more modes of transport.
Articles of Section XVII, covering chapters 86 through 89, are precluded from classification in Section XV, covering chapters 72 through 83. See Section XV, Note 1(g), HTSUSA. Therefore, if the platforms in issue are goods of heading 8609, they cannot be classified in heading 7326.
The ENs for heading 86.09 state:
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.
The principal types of container include :
(1) Furniture removal containers.
(2) Insulated containers for perishable foods or goods.
(3) Containers (generally cylindrical) 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.
(4) Open containers for bulk transport of coal, ores, paving blocks, bricks, tiles, etc. These often have hinged bottoms or sides to facilitate unloading.
(5) Special types for particular goods, especially for fragile goods such as glassware, ceramics, etc., or for live animals.
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.
The 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.
(b) Road-rail trailers (intended mainly for use as road trailers, but so designed that they may be transported on special railway wagons fitted with guide rails) (heading 87.16).
The term “container” is not defined in the text of the HTSUSA or in the ENs. However, CBP has previously found that a container is defined by its common meaning as “a holder or receptacle or something that receives and contains, with a capacity capable of being measured.” HQ 954859 (November 4, 1993). Further, in HQ 083847 (June 15, 1989), CBP cited 19 CFR 10.41(a)(3) which 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):
of a permanent character and accordingly strong enough to be suitable for repeated use;
Specially designed to facilitate the carriage of goods, by one or more modes of transport, without intermediate reloading;
Fitted with devices permitting its ready handling, particularly its transfer from one mode of transport to another;
So designed to be easy to fill and empty; and
Having an internal volume of one cubic metre or more and shall include the normal accessories and equipment of the container when imported with the container, the term ‘container’ includes neither vehicles nor conventional packing;.…”
The ENs for heading 8609, and the two CBP decisions above, all require a
“container” to have a measurable volume or capacity. To have a volume the container must have some kind of sides or door. See HQ 083847, supra. In NY F89829 (July 28, 2000), CBP found that pallets or platforms did not meet this measurable capacity requirement and stated that “pallets are shipping devices onto which goods are placed and secured. This is not the same as a container into which things are put.” In that ruling, CBP determined that the pallets were not classified in subheading 8609.00.0000, HTSUSA, as containers, but according to their constituent material in subheading 7326.90.8586, HTSUSA. See also, HQ 088741 (April 25, 1991).
Contrary to this, CBP has found that if the shipping device does have some kind of wall then the shipping device is classified as a container in subheading 8609.00.0000, HTSUSA. See HQ 954927 (September 22, 1993); NY G82514 (October 5, 2000); HQ 116058 (October 27, 2003).
In the instant case, the article is merely a pallet. It has no walls or doors. The article cannot be said to contain a measurable capacity because it does not have walls with which to limit the volume of something stored on it. This does not satisfy the requirements of the CBP rulings discussed above and the ENs for heading 8609 which describes a container as a “large box equipped with doors, or with removable sides” and as having a capacity measurable in cubic meters usually from 4 to 145 m³ but which is not normally less than 1 m³. Therefore, because the instant article has no walls or doors and cannot be considered to hold a measurable volume, it is precluded from classification in heading 8609.
The importer cites 49 CFR 450.3(a)(2) to define “container”. However, these are regulations from the Department of Transportation, not CBP. The importer also cites the Customs Automated Manifest Interface Requirements (“CAMIR”) Appendix K for descriptions of “container”. Initially we note that CBP need not consider other agency's regulations in defining tariff terms. See, e.g., Sabritas S.A. de C.V. v. United States, 998 F. Supp. 1123 (CIT 1998), HQ 964374 (October 17, 2000). Further, both the Department of Transportation regulations and CAMIR were written for different purposes than classification and we do not find the information probative in this regard, particularly when CBP has previously addressed the description of “container” as discussed above. Therefore, the instant platforms are classified pursuant to their constituent material which is steel. The platform containers for the transportation of goods are classified under heading 7326, specifically subheading 7326.90.8587, HTSUSA, which provides for “Other articles of iron or steel: Other: Other: Other: Other: Other.”
HOLDING:
By application of GRI 1 the steel platforms for the transportation of goods are classifiable under heading 7326, specifically subheading 7326.90.8587, HTSUSA, which provides for “Other articles of iron or steel: Other: Other: Other: Other: Other.” The 2004 column one, general rate of duty is 2.9% ad valorum. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/tata/hts/.
You are to mail this decision to the internal advice applicant no later than 60 days from the date of this letter. On that date, the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division