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HQ 954429




August 23, 1993

CLA-2 CO:R:C:M 954429 LTO

CATEGORY: CLASSIFICATION

TARIFF NO.: 8907.90.00

Mr. Herbert E. Harris II
Harris & Ellsworth
The Watergate
2600 Virginia Avenue, N.W., Suite 1113
Washington, D.C. 20037-1905

RE: Temporary Storage Bladders; Dracones; EN 89.06; EN 89.07; heading 8907; HQ 112807; "the Jones Act"; "vessels"

Dear Mr. Harris:

This is in response to your letter of June 17, 1993, requesting the classification of collapsible bladders, known as "temporary storage bladders" (TSB), under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The TSB is a flexible container used for the containment of oil or other hazardous substances skimmed from the surface of the water. The TSB is attached to the skimming equipment of a skimming vessel and filled with oil spill waste. It is then detached from the skimming vessel, where it either remains stationary for discharge into a support barge or is towed to a discharge area. After discharge, the TSB is rolled up and transported back to the skimming vessels where it may be reused.

The TSB's only use is for oil recovery and storage. The materials from which it is made render the TSB unusable for non- petroleum products. Moreover, the TSB currently is not used for the commercial transportation of cargo, nor, given its unique design, is it capable of such use.

ISSUE:

Whether the TSB is classifiable under heading 8906, HTSUS, which provides for other vessels.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) to the HTSUS govern the classification of goods in the tariff schedule. GRI 1 states in pertinent part that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes . . . ."

The headings at issue are as follows:

8906 Other vessels, including warships and lifeboats other than rowboats

8907 Other floating structures (for example, rafts, tanks, cofferdams, landing-stages, buoys and beacons)

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the Customs Co-operation Council's official interpretation of the Harmonized System. While not legally binding, the ENs provide a commentary on the scope of each heading of the Harmonized System, and are generally indicative of the proper interpretation of these headings.

EN 89.06, pg. 1453, states that heading 8906, HTSUS, "covers all vessels not included in the more specific headings 89.01 to 89.05 [underlining added]." In HQ 112807, dated July 23, 1993, Customs informed your office that dracones used for oil or hazardous materials clean-up are not vessels for purposes of the coastwise laws. 46 U.S.C.A. app. 883 (West Supp. 1993)(referred to as "the Jones Act"). Similarly, we believe that the TSB is not a vessel for classification purposes under the HTSUS. Therefore, because the TSB is not a "vessel" for tariff purposes, it cannot be classified under heading 8906, HTSUS.

Finally, it is necessary to comment on EN 89.06, pg. 1453, which states that heading 8906, HTSUS, includes "dracones." The note defines dracones as "collapsible contrivances for the waterborne transport (by simple towing) of fluids and other goods, consisting of a flexible casing of coated textile fabric, identifiable by their shape (generally like a cigar) and by the presence of various devices such as stabilisers, towing fittings - 3 -
and sometimes buoyancy tubes [emphasis in original]." It is our opinion that the above definition identifies only one type of "dracone" and should not be considered exclusive.

Dracones which are considered to be "vessels," and included under heading 8906, HTSUS, are contrivances for waterborne transport. The TSBs, or dracones, in question are principally used as a repository for oil during an oil spill clean-up. Any transportation function they might have is secondary, and we understand that the TSBs would never be used merely as a transportation vehicle.

EN 89.07, pg. 1454, states that heading 8907, HTSUS, "covers certain floating structures not having the character of vessels." The dracones in question are classifiable under heading 8907, HTSUS, specifically under subheading 8907.90.00, HTSUS.

HOLDING:

The TSBs used for the collection of oil or hazardous materials during spill clean-up operations are classifiable under subheading 8907.90.00, HTSUS, which provides for other floating structures.

Sincerely,

John Durant, Director

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