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HQ 951388

September 29, 1992

CLA-2 CO:R:C:M 951388 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8609.00.00

District Director
U.S. Customs Service
Patrick V. McNamara Building
477 Michigan Avenue
Detroit, MI 48266

RE: Protest No. 3801-91-103247; Steel Containers; HQ 088049; Plus Computing Machines, Inc. v. U.S.; Explanatory Note 86.09; 8609.00.00

Dear Sir:

This is our response on Application for Further Review of Protest No. 3801-1-103247, dated December 5, 1991, concerning your action in classifying and assessing duty on steel containers under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise consists of three types of steel containers. The first type is the "CPC Quarter Basket" container, made of heavy duty steel construction. It is approximately 54 inches in length, 44 inches in width, and 23 1/4 inches in height. It has horizontal tie down tubes at its bottom so that the container can be tied down during transit and so that fork lifts can carry the container after transit. The importer claims that the container is manufactured to special dimensions in order to "cube out" a tractor trailer or rail car. That term refers to the optimium utilization of all the space within a trailer or rail car. Additionally, the container has a collapsibility feature, designed to reduce freight costs associated with the return of empty containers.

The second type of container is the "Aerostar Instrument Panel Rack", made of heavy duty steel construction. The container is approximately 108 inches in length. It is also manufactured in order to "cube out" a tractor trailer or rail car. The container is equipped with looped runner guides which the importer claims are designed for the purposes of securing it to the mode of transport. These runner guides are also used by forklifts to carry the container after transport. The third type of container is the "Series 1000", also made of heavy duty steel construction. It is also constructed to special dimensions in order to "cube out" a tractor trailer or rail car. The container is constructed with special tie down legs designed for securing the container to the mode of transport. The legs also are used to stack the containers on top of one another and can be utilized for in-plant handling purposes. The container possesses a collapsibility feature.

The importer claims that all of the containers are used primarily to carry automobile parts. They are loaded with the parts onto tractor trailers or rail cars in Canada, sent to automobile plants in the U.S. where the automobile parts are unloaded, and then the containers are sent back to Canada for reuse. The purpose of the containers is to carry the parts to the plants, where the parts are immediately used.

ISSUE:

What is the proper classification of the subject steel containers under the HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

The merchandise was entered under subheading 8609.00.00, HTSUS, which provides for: "[c]ontainers specially designed and equipped for carriage by one or more modes of transport." However, the merchandise was liquidated under subheading 7326.90.90, HTSUS, which provides for: "[o]ther articles of iron or steel: [o]ther: [o]ther: [o]ther: [o]ther."

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes, although not dispositive, are to be used to determine the proper interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128 (August 23, 1989). In part, Explanatory Note 86.09 (pp. 1421, 1422), HTSUS, states that:

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 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.

The containers are intended to be used repeatedly, they are equipped with guides and runners to facilitate handling and securing onto a transporting vehicle, and they are suitable for the "door-to-door" transport of goods without intermediate repacking. Although the containers are for the transportation of articles, they can also be used for in-plant use. Therefore, the primary question is whether the subject containers are "specially designed and equipped for carriage by one or more modes of transport".

In Plus Computing Machines, Inc. v. U.S., 44 CCPA 160, 167, C.A.D. 655 (1957), the term "specially constructed" was addressed. It was stated:

[t]he statement that an article is specially constructed for a particular purpose means merely that it includes particular features which adapt it for that purpose. The purpose in question need not be the sole one served by the article and may not even be the principal one. Thus snow- tread tires are specially constructed for driving in snow even though, in practice, they may seldom be used for that purpose; and armored trucks are specially constructed to give protection against bullets, even though they may never be fired upon.

It is our position that, from all the evidence provided by the importer as to the three types of containers, they are specially designed for carriage by a mode of transport. Even though the containers can be used for in-plant storage, their principal use is for the transportation of articles from one point to another. As the importer has noted, the containers do possess particular features which adapt them for transport carriage. The guides and runners facilitate the securing of the containers to a mode of transport for stability while in transit, the containers are manufactured in order to "cube out" a tractor trailer or rail car, and the "CPC Quarter Basket" and the "Series 1000" possess collapsibility features employed when empty containers are returned to Canada for reuse.

Therefore, we find that the containers are classifiable under subheading 8609.00.00, HTSUS, which provides for: "[c]ontainers (including containers for the transport of fluids) specially designed and equipped for carriage by one or more modes of transport."

HOLDING:

The containers are classifiable under subheading 8609.00.00, HTSUS. The protest should be granted in full. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protests.

Sincerely,

John Durant, Director
Commercial Rulings Division

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