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HQ 954859




NOVEMBER 4 1993

CLA-2:CO:R:C:M 954859 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 7616.90.00

Ms. Dorothy Smith
Panalpina Inc.
300 Bull St., Suite 770
Savannah, GA 31401

RE: Aluminum Aircraft Pallets; Articles of Aluminum, Heading 7616; Pallets with Lock-Down Flanges and Edge Rails for Securing to Airplane Cargo Decks; Containers Specially Designed for Carriage by One or Modes of Transport, Heading 8609.00.00; Section XV, Note 1(g), NY 872558

Dear Ms. Smith:

Your letter of July 28, 1993, to the Area Director of Customs, New York Seaport, on behalf of Equipment International Corp., has been referred to this office for reply. The inquiry concerns the tariff classification of air cargo pallets designated the SH 850 FF, MI 860 E2 and NF (notch free) series, from Germany.

FACTS:

The pallets in issue are said to be specialized for transporting air cargo. They typically measure 88in. x 108in., 88in. x 125in. and 96in. x 125in. The pallets are of flat aluminum plate or sheet construction with extruded aluminum edge rails around the perimeter. Also referred to as unit load devices (ULD), these pallets have flanges at the corners that are designed to fit into tracks or grooves on the floors of aircraft cargo areas to permit lock-down during the transport of freight and mail. The load is covered by a contoured net and secured to the pallet by nylon corner tie-down ropes and metal hooks. When moving outdoors to and from the plane, a waterproof top is often used. Based on unit design, the International Air Transport Association (IATA) accords these pallets cubic centimeter ratings in terms of maximum practically usable volume.

Based on NY 872558, dated April 1, 1992, to a different importer on similar merchandise, the local import specialist - 2 -
informally advised you that the pallets would be classifiable in subheading 7616.90.00, Harmonized Tariff Schedule of the United States (HTSUS), as other articles of aluminum. You contend that the containers are specially designed and equipped for carriage by one or more modes of transport, of the type provided for in heading 8609.00.00, HTSUS.

The provisions under consideration are as follows:

7616.90.00 Other articles of aluminum: Other: Other ...5.7 percent

8609.00.00 Containers (including containers for the transport of fluids) specially designed and equipped for carriage by one or more modes of transport...Free

ISSUE:

Whether the aluminum aircraft pallets are containers of heading 8609.00.00; whether they are specially designed and equipped for purposes of that heading.

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

Articles of Section XVII are precluded from classification in Section XV. Section XV, Note 1(g), HTSUS. Therefore, if the pallets in issue are goods of heading 8609.00.00 or of any other provision in Section XVII, they cannot be classified in heading 7616.

The Harmonized Commodity Description And Coding System Explanatory Notes (ENs) constitute the Customs Cooperation Council's official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the notes should always be consulted. See T.D. 89-80. - 3 -

Relevant ENs at pp. 1421 and 2, state that the containers of heading 86.09 are packing receptacles specially designed and equipped for carriage by one or more modes of transport (e.g., road, water or air). They are equipped with fittings 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 notes continue by stating the more usual types may be of wood or metal, and consist of a large box equipped with doors, or with removable sides. Containers of heading 86.09 usually vary in size from 4 to 145 m3 capacity. Certain types may be smaller, but their capacity is not normally less than 1 m3. The ENs exclude from heading 86.09 articles that may be designed for "door-to-door" transport of goods but are not specially constructed as described. These are classified according to their constituent material.

The term container is not defined either in the text of the HTSUS or in the ENs. However, in common meaning the term connotes a holder or receptacle or something that receives and contains, with a capacity capable of being measured. We conclude that by their design the air cargo pallets in issue are not containers of the type described in the cited ENs. The issue of whether they are specially designed and equipped for purposes of heading 8609.00.00 is therefore moot.

HOLDING:

Under the authority of GRI 1, the SH 850 FF, MI 860 E2 and NF series aluminum air cargo pallets are provided for as articles of aluminum, in heading 7616. They are classifiable in subheading 7616.90.00, HTSUS, as other articles of aluminum, other, dutiable at the rate of 5.7 percent ad valorem.

EFFECT ON OTHER RULINGS:

NY 872558 addressed only the issue of whether knocked-down aluminum pallets substantially similar to the ones here were designed or equipped with fittings to facilitate handling and securing on a transporting vehicle, aircraft or vessel, and thus, were suitable for the door-to-door transport of goods without intermediate repacking (i.e., heading 8609.00.00). However, because the ruling confirmed classification of the pallets in subheading 7616.90.00, HTSUS, NY 872558 is affirmed.

Sincerely,

John Durant, Director
Commercial Rulings Division

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