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HQ 116701





August 30, 2006

BOR-4-07-RR-BSTC:CCI 116701 GOB

CATEGORY: CARRIER

Munford Page Hall, II
Dorsey & Whitney LLP
1001 Pennsylvania Avenue, N.W.
Suite 400 North
Washington, DC 20004-2533

RE: Instruments of international traffic; 19 U.S.C. 1322; 19 CFR 10.41a; Oxygen bottles; Meal and beverage carts; Trash carts; Equipment carriers; Oven inserts

Dear Mr. Hall:

This is in response to your ruling request of August 3, 2006 on behalf of Northwest Airlines, Inc. (“NWA”), as supplemented by your letter of August 16, 2006, in response to our request for additional information. Our ruling follows.

FACTS:

You state as follows:

NWA is an air carrier engaged in the international transportation of passengers and cargo. Currently, NWA has nearly 500 flights weekly to and from 38 foreign destinations in 18 different foreign countries. The vast majority of international flights by NWA aircraft are “in-service,” that is, the purpose of the flight is to carry passengers or cargo abroad or to return passengers or cargo from abroad to the United States. The articles that are the subject of this ruling request, when full, will be used to service passengers and crew on NWA’s international flights and, when empty, will be returned to the United States from abroad as cargo on NWA flights.

You request that certain articles used aboard the aforementioned international flights and described below be designated as instruments of international traffic within the meaning of section 10.41a(a)(1), Customs and Border Protection (“CBP”) Regulations (19 CFR § 10.41a(a)(1)).

You describe the articles as follows:

1. oxygen bottles returned empty to the United States from abroad after having been used during international flights by passengers who require an individual supply of in-flight oxygen, such as passengers with emphysema. . . .

2. passenger and crew emergency oxygen bottles returned empty to the United States after having been used or having their contents intentionally purged because of breakdown or expired serviceability. . . .

3. meal and beverage carts that are returned to the United States empty after having been filled with food or drinks and loaded onto an outbound aircraft and, then, used for passenger and crew food and drink service during the outbound flight. . . .

4. glass, liquor, support, 6-tray, and equipment carriers, the vast majority of which are solid aluminum boxes with shelving or compartments, and which, when full, are inserted into spaces in the galley of an outbound aircraft, and, after their contents have been dispensed during the outbound flight, are returned empty to the United States. . . . A relatively small percentage of carriers are made of durable plastic with metal-framed front doors. . . . Carriers are described in more detail below.

5. trash carts that are wheeled down the aisle of the aircraft during outbound flights and are used by the flight attendants to collect trash, and the trash cart containers which are inserted into the carts, that, together, are returned empty to the United States. . . .

6. oven inserts, which, when full, contain meals for the passengers and crew to be heated in the galley area of the aircraft and served during the outbound flight, and, then, are returned empty to the United States. . . .

Carriers are cube-shaped metal, or durable plastic, boxes, shaped to fit in aircraft galley receptacles, and designed to carry everything to support meal, beverage, and general in-flight service on NWA flights. Some carriers are dedicated to liquor (bottles and cans), non-alcoholic beverages (bottles and cans), and drinking glassware. Other carriers can contain a wide range of items. A partial list of examples includes dry food products (packaged condiments, snacks, coffee), perishable foods (fruits, cheeses, bread rolls), coffee pots, tea pots, water pitchers, flatware, wicker baskets, tablecloths, napkins, ice buckets, scented towels (“oshiboris”), porcelainware, amenity kits, meal menus, and landing cards. Airport caterers remove carriers after flight arrival and take them to their facilities for cleaning and restocking. Broken and otherwise unserviceable carriers are shipped as manifested air freight to the United States (Minneapolis) for repair. A few years ago, NWA considered replacing the metal carriers with durable plastic carriers because the latter are lighter weight than the former. Because the durable plastic carriers were found not to be as easily repaired as the metal carriers when they are returned broken to the United States, NWA is currently phasing-out the durable plastic carriers.

You have provided the following additional information with respect to these items: passenger oxygen bottles (personal): 22.25” x 5.5” diameter; estimated units in international service – 150 crew emergency oxygen bottles: 33.7” x 9” diameter; 200 units passenger emergency oxygen bottles: 22.8” x 3.6” diameter; 200 units meal carts (regular): 40.55” x 11.92” x 33.74”; 4,500 units meal carts (large): 40.55” x 17.48” x 33.72”; 200 units beverage carts: 40.55” x 11.92” x 17.01”; 1,500 units carriers: 15.53” x 11.43” x 18.78”; 4,000 units trash carts: 40.49” x 11.84” x 33.74”; 250 units oven inserts (narrow-body): 14.09” x 6.98” x 13.62”; 250 units oven inserts (wide body): 14.28” x 17.99” x 14.49”; 600 units oven inserts (A330): 14.065” x 11.16” x 16.17”; 300 units

With the exception of the durable plastic carriers, all of the articles are made of metal. The anticipated useful life of the articles is as follows: oxygen bottles – 15 years or more; carriers and oven inserts – 5 years or more; and meal, beverage and trash carts – 10 years or more.

The passenger oxygen bottles will be used on approximately 100 flights per year; all other items will be used on approximately 365 flights per year. You state that all of these items were either manufactured in the United States or were imported duty-paid into the United States.

ISSUES:

Whether the subject items may be designated as instruments of international traffic within the meaning of 19 U.S.C. 1322(a) and 19 CFR 10.41a.

Whether NWA would be relieved of the requirement to pay the merchandise processing fee for each article upon its return to the United States from abroad.

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 traffic, , 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 ”

The CBP Regulations issued under the authority of 19 U.S.C. 1322(a) are contained in 19 CFR § 10.41 et seq. Section 10.41a(a)(1), CBP Regulations (19 CFR § 10.41a(a)(1)) designates lift vans, cargo vans, shipping tanks, skids, pallets, caul boards, and cores for textile fabrics as instruments for international traffic.

Section 10.41a(a)(1), CBP Regulations (19 CFR § 10.41a(a)(1)) also authorizes the Commissioner of CBP to designate as instruments of international traffic such additional articles or classes of articles as he shall find should be so designated. Instruments so designated may be released without entry or the payment of duty, subject to the provisions of 19 CFR § 10.41a.

To qualify as an instrument of international traffic within the meaning of 19 U.S.C. 1322(a) and 19 CFR § 10.41a, an article must be used as a container or holder. Further, the article must be substantial, suitable for and capable of repeated use, and used in significant numbers in international traffic. See e.g. Headquarters decisions (“HQ”) 108084, 108658, 109665, and 109702.

With respect to the applicability of the above-referenced criteria to items of a similar nature, construction, and use, we note the following.

Treasury Decision (“T.D.”) 66-184 designated as instruments of international traffic certain metal cylinders used for the transportation of gases. The cylinders ranged in height from 12 inches to 56 inches and in diameter from 2 inches to 12 inches.

T.D. 68-56 designated as instruments of international traffic certain plastic and aluminum trays which were designed to carry certain automotive parts. The plastic trays were 23 inches by 14 inches by 1.75 inches; the aluminum trays were 24.5 inches by 11.5 inches by 3.25 inches.

T.D. 73-166 designated as instruments on international traffic certain steel cylinders used to transport gas. The cylinders were 81 inches long and 18 inches in diameter.

T.D. 74-281 designated as instruments of international traffic certain plastic trays which were 22 inches by 6 inches by 26.5 inches.

T.D. 76-294 designated as instruments of international traffic certain metal trays with plastic bottoms. The trays were 22 inches by 26 inches.

After a review of the information submitted, we determine that the subject items are used as containers or holders, are substantial, suitable for and capable of repeated use, and are used in significant numbers in international traffic. Thus, they meet the criteria for designation as instruments of international traffic within the meaning of 19 U.S.C. § 1322(a) and 19 CFR § 10.41a(a)(1) and are so designated. Because the subject items are designated as instruments of international traffic, they are not subject to entry or the payment of duty pursuant to the aforementioned statutory and regulatory authority.

Section 24.23(c)(1)(i), CBP Regulations (19 CFR § 24.23(c)(1)(i)), with an exception that is not relevant here, provides that the merchandise processing fee does not apply to articles provided for in Chapter 98, Harmonized Tariff Schedule of the United States (“HTSUS”). Instruments of international traffic are provided for in subheading 9803.00.50, HTSUS. Accordingly, pursuant to 19 CFR § 24.23(c)(1)(i), the merchandise processing fee does not apply to the subject items.

HOLDINGS:

1. The subject items are hereby designated as instruments of international traffic within the meaning of 19 U.S.C. 1322(a) and 19 CFR § 10.41a(a)(1) and are therefore not subject to entry or the payment of duty.

2. The subject items are instruments of international traffic and therefore are not subject to the merchandise processing fee pursuant to 19 CFR § 24.23(c)(1)(i).

Sincerely,

Glen E. Vereb
Chief

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