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HQ 083847
June 15, 1989
CLA-2 CO:R:C:G 083847 JLJ, 830328
CATEGORY: Classification
TARIFF NO.: 8609.00.0000; 4016.99.03
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












 
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