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HQ 115033




May 30, 2000

BOR-7 RR:IT: EC 115033 RSD

CATEGORY: CARRIER

Ms. Leora C. Andrist
Nippon Express USA, Inc.
8520 N.E. Alderwood Road, Suite G
Portland, Oregon 97220

RE: Instruments of International Traffic; Integrated Circuit Wafer Containers; 19 U.S.C. 1322(a); 19 CFR 10.41a

Dear Ms. Andrist:

This is in response to your letter dated April 6, 2000, on behalf of Fujitsu Microelectronics, Inc., in which you request that we rule upon the designation of integrated wafer cases as instruments international traffic. We have received a sample of an integrated wafer case for our consideration. This sample will be returned to you under a separate cover.

FACTS:

You state that Fujitsu Microelectronics ships integrated circuit wafer cases. The wafer cases are manufactured in Japan and are used to transport integrated circuit wafers to Japan and Malaysia. Fujitsu Microelectronics ships approximately 400 wafer cases per month to Japan and Malaysia. The full wafer cases are emptied and returned empty to Fujitsu Microelectronics in Gresham, Oregon. The wafer cases are stored until the next shipments of wafers are ready for export. At that time, the quality assurances department will clean the cases and reload them with integrated circuit wafers for export.

The wafer cases are made of hard plastic and are approximately 10 inches square. Each case holds 26 wafers. Paper and foam divide the wafers at the time of shipment, which are disposed of at when the containers reach their destination.

Fujitsu Microelectronics initially purchased 1000 wafer cases from Japan at a cost of $25 each. They are presently shipping approximately 400 cases per month to Japan and Malaysia. This is expected to increase by 50% in the next year. The turnaround time of the cases is approximately every three months. The original purchases have been used in a continuous cycle for the past 2 years.

ISSUE:

Whether the subject plastic wafer cases maybe designated as instruments of international traffic within meaning of 19 U.S.C. 1322(a) and 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 C.F.R. §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.

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 C.F.R. §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 was 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 (Headquarters rulings 105567 and 108658).

We have considered on several occasions whether containers made of plastic could qualify as instruments of international traffic. For example, in HQ 114506, dated October 29, 1998, we determined that containers made of plastic known as totes that were used to ship various small automobile replacement parts from Japan to United States met the requirements necessary for designation as instruments of international traffic. In HQ 112534, dated January 25, 1993, we found that reusable plastic boxes designed to transport automotive strut components qualified as instruments of international traffic.

Upon review of the request and the accompanying sample, we are of the opinion that the containers in question are substantial suitable for and capable of repeated use, and are used in significant numbers in international traffic. Consequently, we find that the subject plastic wafer cases qualify as instruments of international traffic pursuant to 19 U.S.C. 1322(a).

HOLDING:

The subject plastic wafer cases qualify as instruments of international traffic and may be released pursuant to 19 CFR 10.41a.

Sincerely,

Acting Chief,
Entry Procedures and Carriers Branch


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