Instruments of International Traffic; 19 U.S.C. § 1322(a); 19 C.F.R. § 10.41a(a)(1); HTSUS subheading 3923.30.0090; Pierce Biotechnology, Inc.; reusable thermal shipping containers.

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H247720 December 6, 2013 OT:RR:BSTC:CCR H247720 KLQ CATEGORY: Carriers Ms. Michelle Borgialli Pierce Biotechnology, Inc. 3747 N. Meridian Road Rockford, IL 61105 RE: Instruments of International Traffic; 19 U.S.C. § 1322(a); 19 C.F.R. § 10.41a(a)(1); HTSUS subheading 3923.30.0090; Pierce Biotechnology, Inc.; reusable thermal shipping containers. Dear Ms. Borgialli: This is in response to your August 5, 2013, ruling request which was referred to this branch on September 5, 2013. In your letter, you request a ruling concerning whether the INTELSIUS reusable thermal shipping container qualifies as an instrument of international traffic (IIT) and whether the subject containers may be classified under subheading 3923.30.0090 of the Harmonized Tariff Schedule of the United States (HTSUS). Our decision follows. FACTS The following facts are from your ruling request and your e-mails to this office dated December 2-3, 2013. The INTELSIUS reusable thermal shipping container (hereinafter referred to as "container") is a product that allows for the safe shipment of antibodies. It is made of mainly plastic parts consisting of an outer sealed correx composed of polypropylene and a liner and X Micron sheet, also of polypropylene. The accompanying bottle is made of high density polyethylene with a closure made of acetal. These items sit inside vacuum insulated panels made of polyamide laminate and fumed silica. All of these products are packed within a cardboard box. Pierce Biotechnology, Inc. intends to use this system to ship the antibodies from their site in Rockland, Illinois to a sister site in Aalst, Belgium. The antibodies will be unloaded in Aalst, Belgium and the containers will be returned to the Rockland, Illinois site empty. Pierce Biotechnology, Inc. estimates that over a period of six months, it will ship one to five containers per week totaling approximately 25 shipments. Pierce Biotechnology, Inc. will use each of the containers once during this timeframe. ISSUE Whether the subject reusable thermal shipping containers are IITs within the meaning of 19 U.S.C. § 1322(a) and 19 C.F.R. § 10.41a(a)(1). LAW AND ANALYSIS Pursuant to 19 U.S.C. § 1322(a), IITs 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 relevant Customs and Border Protection (CBP) regulations implementing that statute are found at 19 C.F.R. § 10.41a(a)(1) which provides 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). To qualify for entry-free and duty-free treatment as IITs under the aforementioned statutory and regulatory authority, the article must be a substantial container or holder. As stated above, CBP is authorized to designate as an IIT such additional articles not specifically noted in 19 C.F.R. § 10.41a(a)(1). Historically, CBP has held in its published decisions that in order to qualify as an IIT within the meaning of 19 U.S.C. § 1322(a) and 19 C.F.R. § 10.41a(a)(1), an article must be substantial, suitable for and capable of repeated use, and used in significant numbers in international traffic. See HQ H016491 (Oct. 1, 2007); HQ 114150 (Dec. 12, 1997); HQ 107545 (May 7, 1985); Treas. Dec. 71-159, Cust. B. & Dec. 296 (June 18, 1971); 99 Treas. Dec. 533, No. 56247 (Aug. 26, 1964). Subheading 9803.50.00, HTSUS provides for the duty-free treatment of: Substantial containers and holders, if products of the United States (including shooks and staves of United States production when returned as boxes or barrels containing merchandise), or if of foreign production and previously imported and duty (if any) thereon paid, or if of a class specified by the Secretary of the Treasury as instruments of international traffic, repair components for containers of foreign production which are instruments of international traffic, and accessories and equipment for such containers, whether the accessories and equipment are imported with a container to be reexported separately or with another container, or imported separately to be reexported with a container. (footnote and emphasis added). Subchapter 98 of the HTSUS only applies to: (a) Substantial containers or holders which are subject to tariff treatment as imported articles and are: (i) Imported empty and not within the purview of a provision which specifically exempts them from duty; or (ii) Imported containing or holding articles, and which are not of a kind normally sold therewith or are entered separately therefrom; and (b) Certain repair components, accessories and equipment. See U.S. Note 1, et seq., Chapter 98, HTSUS. The reusable thermal shipping containers are substantial inasmuch as they are made of mainly durable plastic parts consisting of an outer sealed correx composed of polypropylene; a liner and X Micron sheet, also of polypropylene; and a bottle made of high density polyethylene with a closure made of acetal. The subject containers are not suitable for and capable of repeated use, insofar as they are used once to export antibodies and then are returned empty. 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 HQ 105567 and HQ 108658. In HQ 218509 (July 30, 2012), CBP held that thermal reusable shipping containers used to ship various articles for the pharmaceutical, biotech and genetic research industries were instruments of international traffic because the containers were substantial, suitable for and capable of repeated use and used in significant numbers in international traffic. In that case, the containers were scheduled to be re-used over one hundred times. In HQ 155142 (July 20, 2011), CBP held that dry shippers used to ship biological specimens were IITs because the dry shippers were each used over one hundred times and had a life span of 3-5 years. The long life span and frequent use contributed to a finding that the dry shippers qualified for IIT status. In the present case, the containers will only be used once, thus failing the suitable for and capable of repeated use prong of the IIT analysis. Based on the foregoing, the reusable thermal containers are not IITs within the meaning of 19 C.F.R. § 10.41a(a)(1); therefore, they will not qualify for entry-free and duty-free treatment. With regard to whether the subject containers may be classified under 3923.30.0090, HTSUS, we are referring your ruling request to the Tariff Classification and Marking Branch for their direct response to you. HOLDING The subject containers are not IITs within the meaning of 19 U.S.C. § 1322(a) and 19 C.F.R. § 10.41a(a)(1). Sincerely, Lisa L. Burley Supervisory Attorney-Advisor/Chief Cargo Security, Carriers and Restricted Merchandise Branch Office of International Trade, Regulations & Rulings U.S. Customs and Border Protection CC: Tariff Classification and Marking Branch