BOR-4-07-OT:RR:BSTC:CCI H218509 DAC
James R. Cahill
Cahill Customs Consulting, Inc.
P.O. Box 821067
South Florida, FL 33082-1067
RE: Instruments of International Traffic; 19 U.S.C. § 1322(a); 19 CFR § 10.41a(a)(1)(3); 19 CFR Part 115; Intelligent Thermal Solutions Reusable Shipping Containers (“ITS-RSC”) temperature control containers.
Dear Mr. Cahill:
This letter is in response to your correspondence of May 8, 2012, in which you request a ruling on behalf of your client, Intelligent Thermal Solutions, LLC (“ITS”). In your request, you inquire whether certain reusable cases, as described below, qualify for designation as instruments of international traffic (IIT) under 19 U.S.C. § 1322(a) and 19 CFR § 10.41a. Our ruling is set forth below.
FACTS:
The following facts are from your letter dated May 8, 2012, and images of the subject articles from your supplemental submission of June 2, 2012. The articles in question are described as “Intelligent Thermal Solutions Reusable Shipping Containers” (“ITS-RSC”). These articles are used as temperature controlled containers. The “ITS-RSC” containers and their components are used for shipping various articles for the pharmaceutical, biotech and genetic research industries. The “ITS-RSC” temperature control containers are produced as refrigerated containers, dry ice containers and frozen containers. The subject containers are currently available in three volume sizes, thirty-six liters, eleven liters, and five liters. The subject 36 liter containers are designated by the following model numbers and words: R36 Refrigerated Container, D36 Dry Ice Container, F36 Frozen Container (36 liter containers are designated as Stock no. 100-00020). The subject 11 liter containers are designated by the following model numbers and words: R11 Refrigerated Container, D11 Dry Ice Container, F11 Frozen Container (11 liter containers are designated as Stock no. 100-00019). The subject five liter containers are newly developed and presently designated as five liter refrigerated, five liter dry ice, and five liter frozen containers. The subject containers may be used with specially designed accessories to include the R36 Freeze Rack and the Thermal Regulating Unit (TRU) for maintaining the desired proper temperature control of such containers. See 19 CFR § 10.41a(a)(3). Images of the “ITS-RSC” temperature control containers are provided below.
Images of R36 Refrigerated Container (volume 36 liters) closed and open are above.
Images of F36 Frozen Container (left) and the D36 Dry Ice Container (right) are above.
Images of R11 Refrigerated Container (volume 11 liters) closed and open are above.
Images of F11 Frozen Container (left) and the D11 Dry Ice Container (right) are above.
Images of the 5 liter Refrigerated Container (volume 5 liters) closed and open are above.
Images of 5 liter Frozen Container (left) and the 5 liter Dry Ice Container (right) are above.
Images of the R36 Freeze Rack (left) and the Thermal Regulating Unit (TRU) are above.
The “ITS-RSC” temperature control containers are capable of being reused over one hundred times, and currently, approximately 65 have been sold and about 55 are rented or leased. Each “ITS-RSC” temperature control container has a unique serial number on the back and inside. The “ITS-RSC” temperature control containers are currently planned for shipping products to and from Puerto Rico, Europe, Ireland, Slovakia, South America, Central America, Haiti, Canada, Mexico, Australia, Israel, Asia, China and Saudi Arabia.
ISSUE:
Whether the “ITS-RSC” temperature control containers as described above may be designated as instruments of international traffic (IIT) 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 or instructions…” The Customs and Border Protection (CBP) Regulations issued under the authority of § 1322(a) are contained in 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 CBP Ruling HQ 116631 (March 27, 2006). 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 “repeated use” means more than twice. See CBP Ruling HQ 116391 (February 16, 2005).
You assert that the subject articles are instruments of international traffic. Pursuant to 19 U.S.C. § 1322(a), instruments of international traffic shall be excepted from the application of the Customs laws to the extent that such terms and conditions are prescribed in regulations or instructions. The CBP regulations, promulgated under the authority of 19 U.S.C. § 1322(a), provide in pertinent part:
Lift vans, cargo vans, shipping tanks, skids, pallets, caul boards, and cores for textile fabrics, arriving (whether loaded or empty) in use or to be used in the shipment of merchandise in international traffic are hereby designated as “instruments of international traffic” . . . The Commissioner of Customs[now
CBP] is authorized to designate as instruments of international traffic, . . ., such additional articles or classes of articles as he shall find should be so designated. Such instruments may be released without entry or the payment of duty, subject to the provisions of this section. 19 C.F.R. § 10.41a(a)(1). (emphasis added.)
In prior determinations, 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 HQ H167475 (July 20, 2011); HQ H030677 (July 17, 2008); HQ 116573, (Dec. 19, 2005). See also HQ H016491 (Oct. 1, 2007); HQ 114150 (Dec. 12, 1997); Treas. Dec. 71-159, Cust. B. & Dec. 296 (June 18, 1971); 101 Treas. Dec. 527, T.D. 66-184, (Aug. 29, 1966); 99 Treas. Dec. 533, No. 56247 (Aug. 26, 1964).
Upon reviewing the present matter, we are of the opinion, based on the information provided by Cahill Customs Consulting on behalf of ITS, that the requisite criteria for designation of the subject “ITS-RSC” temperature control containers as instruments of international traffic have been met. The “ITS-RSC” temperature control containers and associated equipment and accessories are used together to transport various articles for the pharmaceutical, biotech and genetic research industries that must be stored at controlled temperatures. See 19 CFR § 10.41a(a)(3). ITS states that there are approximately one hundred twenty such containers already in circulation. The containers are scheduled to be reused approximately one hundred times. We find the subject containers are substantial. Accordingly, the subject “ITS-RSC” temperature control containers meet the requisite criteria to qualify as IIT pursuant to 19 U.S.C. § 1322(a) and 19 CFR § 10.41a.
HOLDING:
The subject “ITS-RSC” temperature control containers, specifically, Stock numbers 100-00019 and 100-00020, and model numbers R36, D36, F36, R11, D11, and F11, and the five liter refrigerated containers, five liter dry ice containers, and five liter frozen containers are hereby designated as IIT within the meaning of 19 U.S.C. § 1322(a) and 19 CFR § 10.41a(a)(1), and may be released without entry or the payment of duty pursuant to the provisions of 19 CFR § 10.41a(a)(1). The accompanying articles designated as the R36 Freeze Rack and the Thermal Regulating Unit (TRU) are integral to maintaining the desired temperature control of such containers and are accordingly designated as “accessories” of “instruments of international traffic” pursuant to 19 C.F.R. § 10.41a(a)(3).
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