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HQ 116677




July 6, 2006

BOR-4-07-RR:BSTC:CCI 116677 IDL

CATEGORY: CARRIER

Susan Kohn Ross, Esq.
Rodriguez O’Donnell Ross Fuerst Gonzalez Williams & England, P.C. 5777 W. Century Blvd
Suite 1500
Los Angeles, California 90045

RE: Instruments of International Traffic; Flexible Intermediate Bulk Containers; Tote Bags; Bulk Bags; Subheading 9803.00.50, HTSUSA; 19 U.S.C. § 1322; 19 CFR § 10.41a

Dear Ms. Ross:

This is in response to your letter, dated June 6, 2006, on behalf of your client, Fevisa Industrial S.A. de C.V. The letter requests a binding ruling on designation of “flexible intermediate bulk containers” (tote/bulk bags) as instruments of international traffic. Our ruling on this matter is set forth below.

FACTS:

Fevisa Industrial S.A. de C.V. (“Fevisa”) has a plant located in Mexicali, Mexico that specializes in the manufacture of glass containers. Fevisa purchases in the United States raw materials, including silica, sand, soda, ash and limestone, which are necessary to its manufacturing process. Fevisa then transports the raw materials in flexible intermediate bulk containers (hereinafter, “tote bags”) to the plant in Mexicali. The raw materials are unloaded at the plant, and the tote bags are returned empty to the United States. The tote bags are then reloaded in the United States with the raw materials, and the cycle repeats itself.

The bags are described as “Vinicon semibulk flexible bags,” manufactured in Brazil, made of waterproof polyvinyl chloride (PVC) coated fabric, and measuring 61” x 61” x 74”. Fevisa intends to use approximately 224 totes, or more if necessary. The bags are designed to be strong, flexible, resistant, and reusable, with a working load capacity of 5,000 kilos, and an estimated serviceable life of several years.

Each tote bag has a strapped down tube opening on top, through which it is filled. The tube is 36” long and can extend up to 44”. The tote bags also have eight sturdy straps sewn on for the purpose of securing them during transportation. The straps measure 44”. Upon arrival, the tote bags are emptied by being hung up by their straps. This process enables the contents to slip down along the walls of the receiving container without damaging the interior of the bags. After the bags are emptied, they become relatively flat and so can easily be stacked or piled in a smaller space.

You indicated that each tote bag will bear a unique identifier “to facilitate tracking.” You provided a sample of the material comprising the tote bag, manufacturer specifications, photographs, and other pertinent information.

ISSUE:

Whether the tote bags 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 U.S. Customs and Border Protection (CBP) regulations issued under the authority of section 1322(a) are contained in section 10.41 et seq. (19 CFR 10.41 et seq.). 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 (IIT).

Section 10.41a(a)(1) also authorizes the Commissioner of CBP to designate other items as IITs. 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 regulations 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).

In previous rulings, we have held that similar polypropylene bags qualify as IITs. See, e.g., Treasury Decision (T.D.) 76-171; HQ 109696 (September 12, 1988); HQ 113220 (September 28, 1994); HQ 113407 (April 25, 1995); HQ 113916 (July 2, 1997); HQ 114418 (September 23, 1998); HQ 114238 (October 23, 1998); and HQ 114863 (January 12, 2000).

In the instant case, we find that, based on the information provided, the polyvinyl chloride tote bags are used to contain raw materials during transportation from the United States; they are substantial, suitable for and capable of repeated use; and they are used in significant numbers in international traffic. Accordingly, the articles meet the requisite criteria to qualify as IITs pursuant to section 1322(a). The sample you provided is returned herewith.

HOLDING:

The tote bags described above are 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.

Sincerely,

Glen E. Vereb
Chief

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