HQ 083847: Tariff classification of vulcanized portable rubber bags

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                      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











                                         -3-


                    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