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HQ 111345


November 8, 1990

BOR-7-07-CO:R:P:C 111345 GEV

CATEGORY: CARRIER

Mr. Martin Chance
President
Ramp International East Coast U.S.A., Inc. 1444 Biscayne Boulevard, Suite 220
Miami, Florida 33132

RE: Instruments of International Traffic; Auto Ramps; 19 U.S.C. 1322

Dear Mr. Chance:

This is in reference to your letter dated September 25, 1990, enclosing descriptive literature, requesting a ruling that certain equipment your company uses constitutes instruments of international traffic. Our ruling is set forth below.

FACTS:

Ramp International East Coast U.S.A., Inc. ("Ramp") utilizes certain foreign-manufactured intermodal equipment specifically designed to facilitate the carriage and shipment of multiple automobiles in containers. These "auto ramps" are made of steel and come in three different models. Ramp Model A enables two small or medium size cars to be shipped together in one 20' general container, or four cars in one 40' container. Ramp Model B enables three large cars to be shipped together in one 40' general container. The third model, called the Auto Modal unit, enables four cars to be shipped together in one 40' container.

The above Models A and B currently used by "Ramp" number 1000 with the anticipated use of an additional 1-2000 in 1991. They are being used between Los Angeles and Germany, Belgium, Holland, Switzerland and England for the carriage of automobiles from the United States to Europe. The Auto Modal units currently used by "Ramp" number 500 with the anticipated use of an additional 2000 in 1991. All of the equipment under consideration will soon be used between Miami, San Francisco, Charleston, S.C., and Houston and various points in Europe, Japan, Australia and New Zealand.

Pursuant to a request from a former distributor of "Ramp" Customs issued a ruling to the effect that Models A and B are instruments of international traffic (see Ruling 109973 BEW, dated April 7, 1989). To clarify this ruling, and at the same time ensure that their whole product range, consisting of Ramp Models A, B and the Auto Modal unit (the latter of which was not considered in the aforementioned ruling), meet with Customs approval, Ramp has requested its own ruling on this matter.

ISSUE:

Whether the steel auto ramps under consideration which are specifically designed to facilitate the carriage of multiple automobiles in containers are instruments of international traffic within the meaning of 19 U.S.C. 1322(a) and section 10.41a, Customs Regulations (19 CFR 10.41a).

LAW AND ANALYSIS:

Title 19, United States Code, section 1322(a) (19 U.S.C. 1322(a)), provides that "[v]ehicles and other instruments of international traffic, of any class specified by the Secretary of the Treasury, shall be excepted from the application of the customs laws to such extent and subject to such terms and conditions as may be prescribed in regulations or instructions of the Secretary of the Treasury."

The Customs Regulations issued under the authority of section 322(a) are contained in section 10.41a (19 CFR 10.41a). Section 10.41a(a)(1) specifically designates lift vans, cargo vans, shipping tanks, skids, pallets, caul boards, and cores for textile fabrics as instruments of international traffic.

Section 10.41a(a)(1) also authorizes the Commissioner of Customs to designate other items as instruments of international traffic in decisions to be published in the weekly Customs Bulletin. Once designated as instruments of international traffic, these items may be released without entry or the payment of duty, subject to the provisions of section 10.41a.

To qualify as an "instrument of international traffic" within the meaning of 19 U.S.C. 1322(a) and the regulation promulgated pursuant thereto (19 CFR 10.41a et seq.), an article must be used as a container or holder. The article must be substantial, suitable for and capable of repeated use, and used in significant numbers in international traffic. (See subheading 9803.00.50, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), and former Headnote 6(b)(ii), Tariff Schedules of the United States (HTSUS), as well as Headquarters Decisions 104766; 108084; 108658; 109665; and 109702).

The concept of reuse contemplated above is for commercial shipping or transportation purposes, and not incidental or fugitive uses. Tariff Classification Study, Sixth Supplemental Report (May 23, 1963) at 99. See Holly Stores, Inc. v. United States, 697 F.2d 1387 (Federal Circuit, 1982).

In Holly Stores, supra, the court determined that "reuse" in the context of former General Headnote 6(b)(ii) "has been consistently interpreted to mean practical, commercial reuse, not incidental reuse." (Emphasis added). In that case, articles of clothing were shipped into this country on wire or plastic coat hangers. Evidence showed that the hangers were designed to be, and were of fairly durable construction and that it would be physically possible to reuse them. However, the court found that only about one percent of the hangers were reused in any way at all, and that those uses were of a noncommercial nature. The court held that the uses of these hangers beyond shipping them once from overseas to the United States were purely incidental, and concluded that the hangers were "not designed for, or capable of, reuse". Subsequent Customs rulings on this matter have held that single use is not sufficient; reuse means more than twice (Headquarter rulings 105567 and 108658). Furthermore, it is our position that the burden of proof to establish reuse is on the applicant, even though the applicant may not be the party reusing the instrument.

Upon reviewing Ramp's request and the accompanying documentation, we reaffirm our holding in Ruling 109973 that the above requirements have been met with respect to Ramp Models A and B, and so hold with respect to the Auto Modal unit.

HOLDING:

The steel auto ramps under consideration which are specifically designed to facilitate the carriage and shipment of multiple automobiles in containers constitute instruments of international traffic within the meaning of 19 U.S.C. 1322(a) and section 10.41a, Customs Regulations (19 CFR 10.41a).

Sincerely,

B. James Fritz

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