Instruments of International Traffic; 19 U.S.C. §1322(a); 19 CFR 10.41a(a)(1); Plastic Trays; Harmonized Tariff Schedule of the United States Annotated (HTSUSA) heading 9803.00.50.

HQ H071855 November 17, 2009 BOR-4-07:RR:BSTC:CCI H071855 ALS CATEGORY: Carriers Ms. Cindy Hazlett Compliance Specialist Superior Industries 7800 Woodley Avenue Van Nuys, California 91406 RE: Instruments of International Traffic; 19 U.S.C. §1322(a); 19 CFR 10.41a(a)(1); Plastic Trays; Harmonized Tariff Schedule of the United States Annotated (HTSUSA) heading 9803.00.50. Dear Ms. Hazlett: This is in response to your request for a ruling, dated August 3, 2009, concerning whether certain plastic trays qualify as instruments of international traffic under 19 U.S.C. §1322(a) and 19 CFR 10.41a(a)(1) and therefore qualify for duty-free treatment under subheading 9803.00.50, HTSUSA. FACTS: Superior Industries manufactures aluminum wheels for the automotive industry. The aluminum wheels are transported in the plastic trays at issue. The plastic trays are specifically designed to transport the aluminum wheels. The aluminum wheels are imported into the United States from Superior Industries’ factories in Mexico. The plastic trays are manufactured in the United States by two different companies. The trays are made of recycled high-density/high-molecular polyethylene and are exclusively used to transport the aluminum wheels. The trays’ average size is 48” by 48”, which varies depending on the size of the wheels being transported. The trays have a product lifespan of up to 10 years, and approximately one million trays are used on an annual basis. ISSUE: Whether the plastic trays described above may be designated as an instruments of international traffic under 19 U.S.C. §1322(a) and 19 CFR 10.41a(a)(1). LAW AND ANALYSIS: 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. Pursuant to 19 CFR 10.41a(a)(1), the Commissioner of Customs and Border Protection (CBP) is authorized to designate as instruments of international traffic such additional articles not specifically noted in that section. Such 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 CFR 10.41a(a)(1), an article must be used as a container or holder. The article also must be substantial, suitable for and capable of repeated use, and used in significant numbers in international traffic. See HTSUSA subheading 9803.00.50 and HQ 112303 (August 14, 1992). The concept of reuse contemplated above is for commercial shipping or transportation purposes, and not incidental or fugitive uses. Customs Ruling HQ 113531 (August 31, 1995), citing Tariff Classification Study, Sixth Supplemental Report (May 23, 1963) at 99, and Holly Stores, Inc. v. United States, 697 F.2d 1387 (Fed. Cir. 1982). In Holly Stores, the court determined that “reuse” in the context of former General Headnote 6(b)(ii) “has been consistently interpreted to mean practical, commercial reuse, not incidental reuse.” As further noted in HQ 113531, subsequent CBP rulings have held that single use is not sufficient and that “reuse” means more than twice. See, e.g., Customs rulings HQ 105567 and HQ 108658. Upon reviewing your request and the accompanying images, we find that the plastic trays in this case meet the requisite criteria for designation as instruments of international traffic. The trays are used to contain and transport aluminum wheels of at least 14” in diameter (maximum 17”) from Mexico to the United States, they are substantial, suitable for and capable of repeated use, and they are used in significant numbers in international traffic. Furthermore, the plastic trays at issue here are similar to plastic trays that were the subject of a previous ruling. In that case, we also found that trays made of high-density polyethylene are instruments of international traffic, having met all the requisite criteria for such. See CBP Ruling HQ 227120 (August 9, 1996). HOLDING: The plastic trays, as described above, are hereby designated as instruments of international traffic within the meaning of 19 U.S.C. §1322(a) and pursuant to 19 CFR 10.41a(a)(1). Sincerely, Glen E. Vereb Chief Cargo Security, Carriers and Immigration Branch