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HQ 954863

July 14, 1994

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.


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.


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?


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.

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.


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.


John Durant, Director
Commercial Rulings Division

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