CLA-2 CO:R:C:F 954863 ALS
TARIFF NO: 3923.30.0090
District Director of Customs
477 Michigan Ave., Room 200
Detroit, MI 48226
RE: Request for Further Review of Protest 3801-93-101824, dated
May 24, 1993, Concerning Plastic Containers Designed to Hold
Flammable Liquids
Dear Mr. Morandini:
This ruling is on a protest covering multiple entries
covering the referenced products liquidated between February 26,
1993, and April 9, 1993.
FACTS:
The products under consideration are reusable containers
molded of high density polyethylene plastic material, with
various capacities. The containers, also called "jerry cans,"
incorporate handles, pouring spouts and vent caps to prevent
accidental damages and dangerous leaks. These containers come in
various capacities with a maximum rated capacity of 25 liters or
6.6 U.S. gallons. The products are designed to hold flammable
liquids.
ISSUE:
Are the products under consideration articles for conveyance
or packing of goods or are they articles primarily for the
storage of certain types of liquids?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) is governed by - 2 -
the General Rules of Interpretation (GRI's) taken in order.
GRI 1 provides that the classification is determined first in
accordance with the terms of the heading and any relative section
and chapter notes. If GRI 1 fails to classify the goods and if
the headings and legal notes do not otherwise require the
remaining GRI's are applied, taken in order.
The importer states that the articles known as "jerry cans"
are designed primarily for the packing, transporting, and
occasionally for temporary storage of gas, oil and kerosene. It
notes that descriptive literature from the producer indicates
that the articles are dedicated to the conveyance and secondarily
the storage of petroleum based products.
In considering the importer's claim, we noted that these
containers have several features which make them suitable for use
at remote locations or locations removed from the bulk storage of
such liquids. The containers have handles, can be sealed in
order to facilitate the carriage of flammable liquids without
spillage and, because of the high impact resistance of the
plastic, the chances of breakage if the container is dropped are
minimal. Indeed the term "jerry cans", as used in the United
States, originally referred to the narrow, flat-sided, 5 gallon
metal containers for fluids, as fuel, which were strapped to
military vehicles. These containers had handles and a closing
mechanism which permitted the safe transportation of its contents
to remote locations.
While transportation of certain liquids is a vital function
of these containers, we do not believe that their storage
function can be ignored. Insofar as these containers are used
for a function other than the conveyance of liquids from point to
point, they are used to store those liquids. Many of the
qualities which facilitate the conveyance of liquids also
facilitate the safe storage of the flammable liquids. Once these
containers reach their point of use, it appears that they are
used to store the liquids since these places may not have bulk
storage facilities.
The containers may not, in fact, be used for the conveyance
of liquids insofar as they are not used to take their contents
from one specific place to another. In this regard, we note that
these containers when strapped to a vehicle, such as a military
vehicle as previously discussed, or to a recreational vehicle,
are not being conveyed from point to point but are being used as
a reserve fuel tank to store the fuel until such time as it may
be needed.
Thus, we are considering a product which clearly has both a
conveyance and a storage function. Other than some general
statements by the importer and producer, we find no statistical - 3 -
basis for concluding that one function takes precedence over the
other. We, however, note that documentation provided by the
importer tends to indicate that the industry considers the
transportation, and conveyance, function of these containers of
rather limited capacity to be the more important function.
Relative industry standards emphasize the portability function of
the containers.
We next considered the subheading under which the entries
covering the containers was liquidated and the subheading claimed
by the importer. The former subheading 3926.90.90, HTSUSA, is
very general in nature and covers other articles of plastics.
The latter, subheading 3923.30.00, HTSUSA, is more specific,
covering articles for the conveyance or packing of goods, of
plastics.
While we cannot conclude that the subject containers are
used solely or primarily for the conveyance of goods, we note
several other factors which have aided us in reaching a
conclusion as to the proper classification of these containers.
Of the two possible subheadings, subheading 3923.30.00, HTSUSA,
as previously noted is more specific and is normally to be
favored over a subheading providing a more general description.
Industry standards, both Canadian and U.S., tend to emphasis the
portability or transportation (conveyance) function of the
containers.
Subheading 3923.30, HTSUSA, covers carboys, bottles, flasks
and similar articles. All these items may hold liquids. A
carboy, according to The Random House College Dictionary, is a
large glass bottle protected by basketwork or a wooden box,
especially for holding corrosive liquids. It is not noted that
such item is especially suited for the conveyance of its contents
and it would appear more suited for storage purposes.
However, items classifiable in heading 3923, HTSUSA, are not
limited to items which have only one use. In fact, the
Explanatory Notes to the Harmonized System, which represent the
opinion of the international tariff classification experts,
indicates, in at least one case, that articles classifiable in
heading 3923 may have a secondary use. Further, subheading
3923.30, HTSUSA, not only encompasses articles specifically named
therein it includes similar articles.
- 4 -
Since a jerry can is similar to a carboy in that they both
hold liquids and both can be used to transport and store such
liquids, it is not clear that one use predominates over the
other. They would seem to perform a similar function. Thus, we
believe that it is reasonable to conclude that jerry cans of the
type discussed are encompassed by the term "...and similar
articles" in subheading 3923.30.
HOLDING:
Containers of molded high density polyethylene plastics
material with a maximum rated capacity of 6.6 U.S. gallons
designed to hold flammable liquids such as kerosene and gasoline
so that they may be transported and stored in a safe and
convenient manner are classifiable in subheading 3923.30.0090,
HTSUSA.
Since reclassification of the merchandise as indicated above
will result in the same rate of duty as claimed you are
instructed to allow the protest 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 protest.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1992, Subject: Revised Protest
Directive, this decision should be provided by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with this decision
must be accomplished prior to mailing of the decision. Sixty
days from the date of the decision the Office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS and the public
via the Diskette Subscription Service, Lexis, Freedom of
Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division