HQ H021037 - Instruments of International Traffic; 19 U.S.C. § 1322(a); 19 C.F.R. § 10.41a - United States International Trade Commision Rulings

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HQ H021037

December 28, 2007

BOR-4-07-OT:RR:BSTC:CCI H021037 JLB

CATEGORY: CARRIER

Mr. Joseph R. Hoffacker
Barthco Trade Consultants
The Navy Yard
5101 S. Broad Street
Philadelphia, Pennsylvania 19112-1404

RE: Instruments of International Traffic; 19 U.S.C. § 1322(a); 19 C.F.R. § 10.41a

Dear Mr. Hoffacker:

This is in response to your correspondence of December 3, 2007, in which you requested a ruling to classify plastic shipping bins used to transport kiwi fruit as "instruments of international traffic" pursuant to 19 U.S.C. § 1322(a) and 19 C.F.R. § 10.41a. Our ruling on your request follows.

FACTS

Paganini Foods LLC imports kiwi fruit from Italy for entry at the Newark, New Jersey port. The company will use collapsible plastic shipping bins to store the kiwi fruit during the production and shipping process. After the kiwi is shipped to the United States, the empty bins will be collapsed and shipped back to Italy for future shipments.

Photographs of the plastic shipping bins were provided. The bins are 47" long, 39" wide and 29.5" tall, and are made of one hundred percent plastic. The bins will be reused for at least five to ten years worth of shipments. The importer states that there will be tens of thousands of these plastic shipping bins in use between Italy and the United States.

ISSUE

Whether the plastic shipping bins described above are "instruments of international traffic" within the meaning of 19 U.S.C. § 1322(a) and 19 C.F.R.

LAW AND ANALYSIS

Pursuant to 19 U.S.C. § 1322(a), "vehicles and other instruments of international traffic, of any class specified by the Secretary of [Homeland Security], 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..." Lift vans, cargo vans, shipping tanks, skids, pallets, caul boards, and cores for textile fabrics are explicitly classified as "instruments of international traffic." See 19 C.F.R. § 10.41a(a)(1). Additionally, the Commissioner of U.S. Customs and Border Protection ("CBP") is authorized to designate other items besides those mentioned as "instruments of international traffic." Once designated as such, the instruments may be released without entry or payment of duty.

To qualify as an "instrument of international traffic" within the meaning of 19 U.S.C. § 1322(a) and 19 C.F.R. § 10.41a, 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 Headquarters Decision 108084; Headquarters Decision 108658; see also Headquarters Decision 109665; Headquarters Decision 109702. The concept of reuse contemplated above is for commercial shipping or transportation purposes, and not incidental or fugitive uses. See Tariff Classification Study, Sixth Supplemental Report (May 23, 1963) at 99; Holly Stores, Inc. v. United States, 697 F.2d 1387 (1982). In Headquarters Decision 116641, dated June 15, 2006, CBP ruled that plastic cassettes used to transport magnetic disks are reusable since empty cassette disks were emptied, washed and prepared for the next export cycle and had a useful life of at least 18-24 months. Reuse has been held to mean using the containers more than twice. See Headquarter Decision 105567; Headquarters Decision 108658.

It is well-settled that certain containers made of plastic can qualify as "instruments of international traffic." See, e.g., Headquarters Decision 115033, dated May 30, 2000; Headquarters Decision 114506, dated October 29, 1998; Headquarters Decision 112534, dated January 25, 1993. In Headquarters Decision 112534, dated January 25, 1993, CBP held that reusable plastic boxes used to import automobile parts qualified as "instruments of international traffic." Those plastic containers are similar to the plastic shipping bins used by Paganini Foods LLC as they are made of sufficiently durable plastic that allows them to be used repeatedly to transport merchandise in international traffic.

Upon reviewing the request, the accompanying documentation and the photographs, the shipping bins appear to be containers that are substantial, suitable for and capable of repeated use, and used in significant numbers in international traffic. The bins have a useful life of ten years and there will be a significant number in international traffic as the importer will ship tens of thousands of such bins. The bins therefore qualify as "instruments of international traffic" and may be released without entry or payment of duty.

HOLDING

The plastic shipping bins described above qualify as "instruments of international traffic" within the meaning of 19 U.S.C. § 1322(a) and 19 C.F.R. § 10.41a and may be released without entry or the payment of duty.

Sincerely,

Glen E. Vereb, Chief

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