Instruments of International Traffic; 19 U.S.C. § 1322(a); 19 CFR 10.41a; Plastic Shipping Trays

HQ H124655 March 3, 2011 BOR-4-07:OT:RR:BSTC:CCI H124655 ALS CATEGORY: Carriers Mr. Jamal Ahmed Project Manager Russell A. Farrow 5397 Eglinton Avenue West, Suite 220 Toronto, Ontario, Canada M9C 5K6 RE: Instruments of International Traffic; 19 U.S.C. § 1322(a); 19 CFR 10.41a; Plastic Shipping Trays Dear Mr. Ahmed: This is in response to your correspondence, dated September 8, 2010, in which you requested a ruling on whether certain plastic shipping trays qualify as instruments of international traffic under 19 U.S.C. § 1322(a) and 19 CFR 10.41a. Our ruling is set forth below. FACTS: Pacific Northwest Baking Company plans to export dinner buns to Canada from the United States on the subject plastic trays. When the buns arrive in Canada, they will be removed from the trays, and then the empty trays will be shipped back to the United States for reuse. The trays are of two types. The double-layer tray is 25.75 inches long by 21.5 inches wide by 4.5 inches in height, while the single-layer tray is 25.75 inches long by 21.5 inches wide by 3.5 inches in height. You state that there are approximately 38,895 double-layer trays and 16,226 single-layer trays currently in use. You also state that the approximate life span of the trays is eight years and that each tray will make approximately 195 trips during its life span. Pictures of the trays are immediately below:
DOUBLE LAYER TRAY
SINGLE LAYER TRAY ISSUE: Whether the plastic shipping trays as described above may be designated as instruments of international traffic (IITs) within the meaning of 19 U.S.C. § 1322(a) and 19 CFR 10.41a(a)(1).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…" The CBP Regulations issued under the authority of § 1322(a) are contained in section 10.41 et seq. (19 CFR 10.41a). To qualify as an IIT within the meaning of 19 U.S.C. § 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 Harmonized Tariff Schedule of the United States Annotated ("HTSUSA") subheading 9803.00.50; Tariff Schedule of the United States ("TSUS") Headnote 6(b)(ii). See also CBP Rulings HQ 104766 and HQ 108084. 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 (Fed. Cir. 1982). CBP has consistently held that single use is not sufficient; reuse means more than twice. See, e.g., CBP Rulings HQ 105567 and HQ 108658.Upon reviewing your request in the present case, we are of the opinion that, based on the information provided, the requisite criteria for designation of the subject plastic shipping trays as instruments of international traffic have been met. The trays are used to contain a perishable food item during transportation from the United States to Canada on numerous occasions, which demonstrates that they are capable of repeat use. The materials used in construction and the dimensions of the trays indicate that they are substantial. They are also used in significant numbers in international traffic. Accordingly, the trays meet the requisite criteria to qualify as IITs pursuant to 19 U.S.C. § 1322(a) and 19 CFR 10.41a. This finding comports with previous determinations made by CBP, where CBP has ruled that certain articles of similar nature, use and construction as those presently under consideration qualify as instruments of international traffic pursuant to 19 U.S.C. § 1322(a) and 19 CFR 10.41a. See, e.g., CBP Ruling HQ H037859 (November 4, 2008) (plastic trays used for shipping carbon blocks designated as IITs). HOLDING: The subject plastic shipping trays described above are designated as instruments of international traffic within the meaning of 19 U.S.C. § 1322(a) and 19 CFR 10.41a.Sincerely, George Frederick McCray Supervisory Attorney-Advisor/Chief Cargo Security, Carriers and Immigration Branch Office of International Trade, Regulations & Rulings U.S. Customs and Border Protection