Instruments of International Traffic; 19 U.S.C. § 1322(a); 19 C.F.R. § 10.41a(a)(1); HTSUS subheading 9803.00.50; Biocair Inc.; “CSafe RAP” Temperature-controlled Air Cargo Containers.

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H303405 May 9, 2019 BOR-07-OT:RR:BSTC:CCR H303405 TNA CATEGORY: Carriers Matthew Wasserbach Express Customs Clearance 71 S Central Avenue, #300 Valley Stream NY 11580 RE: Instruments of International Traffic; 19 U.S.C. § 1322(a); 19 C.F.R. § 10.41a(a)(1); HTSUS subheading 9803.00.50; Biocair Inc.; “CSafe RAP” Temperature-controlled Air Cargo Containers. Dear Mr. Wasserbach: This is in response to your March 29, 2019, ruling request to the National Commodity Specialist Division (“NCSD”) on behalf of Biocair Inc. The NCSD forwarded your request to this office on April 5, 2019. In your submission, you request a ruling concerning whether certain temperature-controlled air cargo containers qualify as instruments of international traffic (IITs) and are therefore classifiable under subheading 9803.00.50 of the Harmonized Tariff Schedule of the United States (HTSUS). Our decision follows. FACTS The following facts are from your ruling request and your emails of May 3, 2019 and May 8, 2019, which contained further information that our office had requested. The subject merchandise is the “CSafe RAP,” a temperature-controlled air cargo container that is manufactured in the United States. These containers are used to ship either chemical samples or pharmaceuticals internationally, and are designed to keep these items at a certain temperature throughout the duration of their transportation. These containers are used to import merchandise into the United States and then are shipped abroad to continue the cycle. They are imported through various airports in the United States, primarily New York, Los Angeles, Chicago, Miami and Raleigh. Once the containers arrive in the United States, they are either transported to their final location with their contents inside, or the container remains in Biocair’s storage facility near John F. Kenned Airport in New York pending export for reuse while their contents are removed and delivered to their final destination. The subject containers have internal dimensions of 97.5 inches in length by 82 inches in width by 51 inches in height. Their external dimensions are 125 inches in length by 88 inches in width by 64 inches in height. In addition, they can carry up to 10,625 pounds of cargo, and their maximum allowable weight is 13,300 pounds. These containers consist of composite exterior panels containing high-performance aramid fiber for enhanced container durability. They are capable of running off of A/C power, but also contain internal batteries whose running time is generally longer than 120 hours. The lifespan of these containers is three years, after which they are subject to being rebuilt. There are currently 1400 of these containers in circulation. Your ruling request stated that these containers can be reused an infinite number of times, and you have not provided more specific information as to reuse, despite multiple requests from this office. The following images were submitted with the technical specifications of the subject temperature-controlled air cargo containers:

ISSUE Whether the subject temperature-controlled air cargo 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. 19 C.F.R. § 10.41a(a)(1)(emphasis added). Such instruments may be released without entry or the payment of duty, subject to the provisions of this section. Subheading 9803.00.50, 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. Pursuant to 19 C.F.R. § 10.41a(a)(1), “[t]he Commissioner of Customs [currently 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.” See 19 C.F.R. § 10.41a(a). 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). In the present case, the subject climate controlled transport devices are substantial inasmuch as they have an infinite life expectancy and their exterior panels contain high-performance aramid fiber. In addition, they are used in significant numbers in international traffic in that there are 1400 of them currently in circulation. The only reason they are replaced or taken out of circulation is if they are damaged and in need of repair. 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). In this regard, it is clear from your submission that these containers are reused, you were unable to provide specific information as to how many times they are reused. As a result, we are unable assess whether the subject devices meet this prong of the test for IITs. As such, we are unable to conclude that the subject containers are IITs. HOLDING The subject “CSafe RAP” temperature-controlled air cargo 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 Chief/Supervisory Attorney-Advisor Cargo Security, Carriers and Restricted Merchandise Branch Office of International Trade, Regulations and Rulings U.S. Customs and Border Protection