BOR-4-07-OT:RR:BSTC:CCI H155142 DAC
Richard C. Katz Snell & Wilmer, L.L.P.
One South Church Ave.
Suite 1500
Tucson, Arizona 85701-1630
RE: Instruments of International Traffic (IITs); IIT accessories; 19 U.S.C. § 1322(a); 19 CFR § 10.41a; 19 CFR § 10.41a(a)(1),(3); CryoPort Inc. “Dry Shipper”.
Dear Mr. Katz:
This letter is in response to your correspondence of March 11, 2010, in which you request a ruling on behalf of your client, CryoPort, Inc. (“CryoPort”). You inquire whether certain aluminum cryogenic shipping containers, as described below, qualify for designation as instruments of international traffic (IIT) pursuant to 19 U.S.C. § 1322(a) and 19 CFR § 10.41a(a)(1), and whether the “data logger” used with the subject container qualifies as an “accessory” of the subject container within the meaning of 19 CFR § 10.41a(a)(3). Our ruling is set forth below.
FACTS:
CryoPort is an integrated supply chain supplier and distributor of aluminum cryogenic shipping containers for biological samples and specimens. The subject containers consist of aluminum vacuum flasks approximately one cubic foot in size. The subject containers are known as “dry shippers.” The “dry shipper” containers use liquid nitrogen as a refrigerant and are capable of maintaining a temperature of less than negative 150 degrees centigrade (< - 150 ºC) for more than ten (10) days. CryoPort claims the subject container is named “dry shipper” because of the proprietary design, which uses liquid nitrogen refrigerant, allows the cold vapor emanating from the liquid nitrogen to be fully absorbed into a porous foam retention medium that surrounds the specimen chamber. CryoPort claims the foam retention system fully absorbs the liquid nitrogen preventing any spilling, regardless of the orientation of the container during transportation, even if tipped on its side, the liquid nitrogen remains entrapped in the foam and the specimen remains dry. CryoPort claims that the porous foam retention medium is therefore an integral part of the “dry shipper” container. The cold vapor emanating from the liquid nitrogen refrigerant that is entrapped in the foam retention medium provides for the duration of cooling for ten (10) days, which eliminates the need for repeatedly adding ice or dry-ice, as used in other systems, during transportation over great distances.
When specimens are to be shipped in a CryoPort “dry shipper”, CryoPort will provide its customer with a cryogenic “dry shipper” container. The customer can load the “dry shipper” with biological specimens and transport the samples or specimens to an overseas destination. After arrival at the final destination point, the samples or specimens will be removed from the cryogenic “dry shipper” container, and the unloaded, empty “dry shipper” container will be returned to CryoPort, in the United States, for cleaning and preparation for future repeated uses.
Upon delivery of the “dry shipper” container to the initial loading point for any samples or specimens, it includes two bags for packing the product within the cooled chamber. One bag is made of an absorbent material and one bag is made of Tyvek. The Tyvek bag is to provide an outer protective barrier and is reported by CryoPort to be rated for the safe transportation of infectious substances. Also, a “data logger” is usually included with and accompanies the “dry shipper” container when delivered to the initial loading point. The “data loggers” monitor and record the temperatures of the samples or specimens for during the period of transportation, and the temperature sensor is located within the specimen chamber.
The Cryport “dry shipper” container is to be placed within and protected by, a suitably fitted recyclable cardboard shipping box, which facilitates handling of the “dry shipper” container during transportation; and such cardboard shipping box is not being considered within this ruling, it is not being included as part of the “dry shipper” within this ruling, and it does not fall within the scope of this ruling regarding the “dry shippers” and their “data loggers.”
At present, CryoPort states that there are approximately 2,250 “dry shippers” in its circulation inventory. It is expected that the company will have several thousand “dry shippers” in international use within the next two years. CryoPort states that each individual “dry shipper” container is estimated to be capable of being re-used approximately one hundred (100) times during its normal useful life. Additionally, CryoPort states that each individual “dry shipper” container is expected to last for a period of between three to five years (3-5 years) during its normal useful life.
A diagram of the “dry shipper” and an image of the “data logger” are provided below.
ISSUE:
1. Whether the “dry shipper” containers described herein 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).
2. Whether the “data loggers” described herein may be designated as “accessories” to instruments of international traffic within the meaning of 19 U.S.C. § 1322(a) and 19 CFR § 10.41a(a)(3).
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 19 U.S.C. § 1322(a) are at 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 Rulings HQ 104766 and HQ 108084. 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 Rulings HQ 105567 and HQ 108658.
You assert that the subject articles are instruments of international traffic. Pursuant to 19 U.S.C. § 1322(a), instruments of international traffic (IIT) 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 CBP rulings, we have designated silane modules for the transportation of gases as IITs in HQ 111933, (Feb, 10, 1992). Additionally, we designated cylinders known as “bubblers” for the transportation of metalorganics as IITs in HQ H010127 (July 9, 2007). We also designated metal cylinders designed for transportation of acetylene and other gases as IITs in Treasury Decision (T.D.) 66-184, (Aug. 29, 1966); 101 Treas. Dec. 527 (Aug. 29, 1966); 31 Fed. Reg. 11618 (Sept. 2, 1966). In sum, there are numerous prior CBP determinations in which we have 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 H030677 (July 17, 2008); HQ 116573, (Dec. 19, 2005). See also HQ H016491 (Oct. 1, 2007); HQ 114150 (Dec. 12, 1997); HQ 107545 (May 7, 1985); HQ 111580 (Oct. 21, 1991); HQ 109634 (Aug. 11, 1988); HQ 116684 (Aug. 17, 2006); Treas. Dec. 71-159, Cust. B. & Dec. 296 (June 18, 1971); 99 Treas. Dec. 533, No. 56247 (Aug. 26, 1964).
The subject “dry shipper” containers are capable of repeated use and they are used in significant numbers in international traffic. We find the subject “dry shipper” containers are substantial. We also find the “dry shippers” with the porous foam retention medium are “containers” within the meaning of 19 CFR § 10.41a. Accordingly, based upon all of the above, the subject “dry shippers” satisfy the criteria to be IITs within the meaning of 19 U.S.C. § 1322(a) and 19 CFR § 10.41a. See 19 CFR § 10.41a(a)(1).
In accordance with 19 CFR § 10.41a(a)(3), instruments of international traffic (IIT) also “includes the normal accessories and equipment imported with any such instrument which is a ‘container’ as defined in Article 1 of the Customs Convention on Containers.” We have herein determined the “dry shippers” meet the requirements of a container and IIT. Therefore, the “data loggers” when accompanying a “dry shipper” container are to be considered “accessories” to IITs within the meaning of 19 CFR § 10.41a(a)(3).
Upon reviewing the present matter, we are of the opinion, based on all of the information provided by Snell & Wilmer, LLP, on behalf of their client CryoPort, that the requisite criteria for designation of the subject “dry shipper” containers as instruments of international traffic have been met. The subject “dry shipper” containers and “data loggers” are used to transport biological samples, specimens and various articles that must be transported and stored at controlled temperatures. CryoPort states that there are over two thousand such containers already in international circulation. The subject “dry shipper” containers are each scheduled to be reused approximately one hundred times. We find the subject “dry shipper” containers are substantial. Accordingly, the subject “dry shipper” containers meet the requisite criteria to qualify as IIT pursuant to 19 U.S.C. § 1322(a) and 19 CFR § 10.41a. We also find the subject “data loggers” are accessories to IITs within the meaning of 19 CFR § 10.41a(a)(3). Accordingly, the “dry shippers” and the accompanying use of the “data loggers” may be released without entry or the payment of duty pursuant to the provisions of 19 CFR § 10.41a(a)(1).
HOLDING:
1. The subject “dry shipper” containers are hereby designated as instruments of international traffic (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).
2. The subject “data loggers” are hereby designated as accessories to IITs within the meaning of 19 U.S.C. § 1322(a) and pursuant to 19 C.F.R. § 10.41a(a)(3), and when such “data loggers” accompany the “dry shipper” containers, the “dry shippers” and accompanying “data loggers” may be released without entry or the payment of duty pursuant to the provisions of 19 CFR § 10.41a(a)(1).
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