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HQ H018096





October 10, 2007

BOR-4-07-OT:RR:BSTC:CCI H018096 JLB

CATEGORY: CARRIER

Ms. Meghan E. McBurney
TLR-Total Logistics Resource Inc.
25 Kearny St., Suite 304
San Francisco, California 94108

RE: Instruments of International Traffic; 19 U.S.C. § 1322(a); 19 C.F.R. § 10.41a

Dear Ms. McBurney:

This is in response to your correspondence of September 21, 2007, in which you requested a ruling to classify polypropylene bags designed to transport rice as “instruments of international traffic” pursuant to 19 U.S.C. § 1322(a) and 19 C.F.R. § 10.41a. Our ruling on your request follows.

FACTS

The Fulton Denver Company imports approximately 9 million polypropylene bags per year. The majority of the bags are manufactured by Han Shing Chemical with the others being manufactured by an alternate manufacturer, Pastipak Lanka Limited. The ports of unlading will be Oakland, California, Los Angeles, California and Seattle, Washington. These bags are filed with rice and then exported to all the Asian countries, excluding Japan, with the majority of the shipments being to Korea.

A sample of the aforementioned bag was provided. The bag consists of woven polypropylene with one end sown shut. The other end of the bag is sown shut after the bag is filled with rice. The dimensions of the bag are 14” x 32” x 5”. The importer states that the bags are used a minimum of two times, but they cannot confirm that the bags are used a third time except when the bags of rice are shipped to Korea.

ISSUE

Whether the polypropylene bags described above are “instruments of international traffic” within the meaning of 19 U.S.C. § 1322(a) and 19 C.F.R.

LAW AND ANALYSIS

Pursuant to 19 U.S.C. § 1322(a), “vehicles and other instruments of international traffic, of any class specified by the Secretary of [Homeland Security], 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 of the Secretary” Lift vans, cargo vans, shipping tanks, skids, pallets, caul boards, and cores for textile fabrics are explicitly classified as “instruments of international traffic.” See 19 C.F.R. § 10.41a(a)(1). Additionally, the Commissioner of U.S. Customs and Border Protection (“CBP”) is authorized to designate other items besides those mentioned as “instruments of international traffic.” Once designated as such, the 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 C.F.R. § 10.41a, 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 Headquarters Decision 109665, dated September 12, 1988; Headquarter Decision 109634, dated August 11, 1988; see also Headquarters Decision 113687, dated February 27, 1997. 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; see also Holly Stores, Inc. v. United States, 697 F.2d 1387, 1388 (Federal Cir., 1982). Reuse has been held to mean using the containers more than twice. See Headquarter Decisions 112627, dated May 18, 1993; Headquarters Decision 111073, dated August 16, 1990. The burden of proof to establish reuse is on the applicant, even though the applicant may not be the party reusing the instrument. See Headquarters Decision 113694, dated October 24, 1996; see also Headquarters Decision 115816, dated December 2, 2002.

In the present case, the importer can only confirm that the polypropylene bags are used more than twice when they are shipped to Korea. In all other instances, the importer has failed to meet the burden of proof. Consequently, the polypropylene bags that will be used at least three times meet the reusability requirement and can qualify as “instruments of international traffic.” The remaining bags that are not shipped to Korea, however, do not meet the requirements of an “instrument of international traffic” and may not be designated as such. See Headquarters Decision 116032, dated October 30, 2003 (holding that Slip-Trays that will be used multiple times meet the “instrument of international traffic” requirements while those that will be used only once and then destroyed do not qualify as “instruments of international traffic”).

It is well settled that woven polypropylene bags can qualify as “instruments of international traffic.” We note that the CBP has previously ruled on the “instruments of international traffic” status of bags of similar size, material and purpose. In Headquarters Decision 113916, dated July 2, 1997, CBP held that woven polypropylene bags similar to those in the present case, consisting of two rectangular sheets of material hemmed along the edges used to transport agricultural products, were “instruments of international traffic.” See, e.g., Treasury Decision 76-171; Headquarters Decision 109696, dated September 12, 1988; Headquarters Decision 113220, dated September 28, 1994; Headquarters Decision 113407, dated April 25, 1995; Headquarters Decision 114418, dated September 23, 1998; Headquarters Decision 114238, dated October 23, 1998.

Upon reviewing the request, the accompanying documentation and sample provided, the polypropylene bags shipped to Korea appear to be substantial, suitable for and capable of repeated use, and used in significant numbers in international traffic. Furthermore, the CBP has previously ruled that polypropylene bags of similar use and construction as those presently under consideration qualify as “instruments of international traffic” pursuant to 19 U.S.C. § 1322(a) and 19 C.F.R. § 10.41a. Therefore, those polypropylene bags used three or more times qualify as “instruments of international traffic.” The instruments may be released without entry or payment of duty. The sample provided is being returned to you.

HOLDING

The polypropylene bags used for shipments to Korea as described above qualify as “instruments of international traffic” within the meaning of 19 U.S.C. § 1322(a) and 19 C.F.R. § 10.41a and may be released without entry or the payment of duty.

Sincerely,

Glen E. Vereb, Chief

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