BOR-4-07-CO:R:IT:C 113129 GOB
Roger E. Gobrogge
Patent Attorney
Dow Corning Corporation
P.O. Box 994
Midland, Michigan 48686-0994
RE: Instruments of International traffic; 19 U.S.C. 1322; 19 CFR
10.41a; Empty containers
Dear Mr. Gobrogge:
This is in response to your letter dated May 11, 1994. You
have also provided additional information to us since that time.
FACTS:
On behalf of Dow Corning, you request a ruling as follows.
You request a ruling that certain items be designated as
instruments of international traffic within the meaning of 19 CFR
10.41a. You describe the items as follows: 40 steel containers
which are 20 feet by eight feet by eight feet. Some of the
containers are stainless steel, others are carbon steel. The
containers are used to ship chemicals.
You also request a ruling with respect to the importation of
certain residual chemicals in these containers. In your letter of
May 11, 1994, you describe the facts thusly:
In a proposed transaction, Dow Corning will fill one of these
large containers with a chemical (eg., ethyltrichlorosilane).
The filled container will be exported to its subsidiary (eg.,
in Barry, Wales). The Welsh plant will empty this container
and use the chemical therein to produce products. The empty
container will be imported back into the United States,
cleaned, refilled and re-exported.
...
By virtue of the size of the container, it is nearly
impossible to empty it completely. Accordingly, when the
container is imported into the United States, it will contain
some residual of the original chemical, i.e., it will not be
completely empty.
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...
We could attempt to quantify the chemical (which would be very
difficult from a practical standpoint) and reimport it as
returned US goods under HTS 9801.
Alternatively, we could consider the container "empty".
Recently, however, Dow Corning discovered that such residuals
are covered by the Toxic Substances Control Act (TSCA). As
such, there would appear to be an inconsistency in attaching
a TSCA certificate to an "empty" container.
In a letter dated June 20, 1994, you provided the following
additional information:
...Each container holds approximately 3600 gallons, although
the contents are generally weighed rather than measured in
volume.
...The residual in these tanks is generally about 50 gallons
[approximately 1.4 percent of the amount when the container
is filled], although this can vary over a wide range.
...The residual in these containers is generally not discarded
(unless the tank is to be repaired). Rather, additional
chemicals are merely added to the tank.
ISSUES:
1. Whether the subject items may be designated as instruments
of international traffic within the meaning of 19 U.S.C. 1322(a)
and 19 CFR 10.41a.
2. The appropriate manner in which to enter the containers
which contain residual chemicals.
LAW AND ANALYSIS:
19 U.S.C. 1322(a) states in part:
Vehicles and other instruments of international traffic, of
any class specified by the Secretary of the Treasury, 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 of
the Treasury.
The Customs Regulations issued under the authority of 19 U.S.C
1322 are contained in 19 CFR 10.41a. 19 CFR 10.41a(a)(1)
designates lift vans, cargo vans, shipping tanks, skids, pallets,
caul boards, and cores for textile fabrics as instruments for
international traffic.
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19 CFR 10.41a(a)(1) also authorizes the Commissioner of
Customs to designate as instruments of international traffic such
additional articles or classes of articles as he shall find should
be so designated. Instruments so designated may be released
without entry or the payment of duty, subject to the provisions of
19 CFR 10.41a.
To qualify as an instrument of international traffic within
the meaning of 19 U.S.C. 1322(a) and 19 CFR 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 decisions
108084, 108658, 109665, and 109702.
After a review of the information submitted, we determine that
the steel containers meet the requirements to be designated as
instruments of international traffic.
We also determine that under the facts described supra, the
containers which contain a residue of chemicals may be entered as
empty. This determination is limited to the facts of this case,
including the fact that the residue is a very small part of the
amount of a full container (approximately 1.4 percent) and the fact
that the residue remains in the container because it is virtually
impossible to completely empty the container.
As we informed you telephonically, we are unable to express
any opinion with respect to any requirements of the laws and
regulations administered by the Environmental Protection Agency.
HOLDINGS:
1. The subject steel containers are designated as instruments
of international traffic within the meaning of 19 U.S.C. 1322(a)
and 19 CFR 10.41a.
2. Under the facts of this case, the steel containers may be
entered as empty containers.
Sincerely,
Arthur P. Schifflin
Chief
Carrier Rulings Branch