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HQ 116631




March 27, 2006

BOR-4-07-RR:BSTC:CCI 116631 IDL

CATEGORY: CARRIER

Karl F. Krueger
DHL Danzas Air and Ocean
2660 20th Street
Port Huron, Michigan 48060

RE: Instruments of International Traffic; Tractor Rollbars; Subheading 9803.00.50, HTSUSA; 19 U.S.C. § 1322; 19 CFR § 10.41a

Dear Mr. Krueger:

This is in response to your letter to the National Commodity Specialist Division, U.S. Customs and Border Protection (CBP), dated February 17, 2006, on behalf of your client, Deere & Company. The letter, which has been forwarded to this office for our review, requests a binding ruling on designation of “Roll-over Protective Structures” as Instruments of International Traffic. Our ruling on this matter is set forth below.

FACTS:

Deere & Company (“Deere”) exports agricultural tractors to Europe using a Roll-On/Roll-Off (“RoRo”) vessel. Deere installs Roll-over Protective Structures (“ROPS”) (i.e., rollbars that attach to the seat) in the tractors in order to protect drivers driving on and off the RoRo vessels. Upon delivery of the tractors to a facility in Europe, the ROPS are removed from the tractors and shipped back to Deere in the United States. Deere then attaches the ROPS to the tractors on the next shipment and the cycle repeats itself.

The ROPS are manufactured in Japan and imported duty-paid by Deere. You have provided an image of the ROPS with your letter.

ISSUE:

Whether the Roll-over Protective Structures described above may be designated as instruments of international traffic within the meaning of 19 U.S.C. § 1322(a) and 19 CFR § 10.41a, CBP regulations (19 CFR 10.41a), and therefore, are classifiable under subheading 9803.00.50, HTSUSA?

LAW AND ANALYSIS:

Title 19, United States Code, section 1322(a) (19 U.S.C. 1322(a)), provides in pertinent part that “[v]ehicles and other instruments of international trafficshall 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.” The CBP regulations issued under the authority of section 1322(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 CBP to designate other items as instruments of international traffic (IIT). Once designated as IITs, these items may be released without entry or the payment of duty, subject to the provisions of section 10.41a.

To qualify as an IIT within the meaning of 19 U.S.C. section 1322(a) and the regulation promulgated pursuant thereto (19 CFR 10.41 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 Schedule of the United States (TSUS), 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).

Accordingly, it is our position that since the ROPS do not contain or hold transported merchandise, as required, they do not meet the criteria for designation as “instruments of international traffic” within the meaning of 19 U.S.C. § 1322(a) and section 10.41a of the CBP Regulations.

HOLDING:

The Roll-over Protective Structures may not be designated as instruments of international traffic within the meaning of 19 U.S.C. § 1322(a) and 19 CFR § 10.41a, and therefore, are not classifiable under subheading 9803.00.50, HTSUSA.

Sincerely,

Glen E. Vereb
Chief

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