RR:BSTC:CCI H026715 CK
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; Entry and Manifesting of Containers
Dear Mr. Gobrogge:
This is in regard to ruling letter HQ 113129, dated July 12, 1994, in which we held that the containers at issue containing residual chemicals therein were “instruments of international traffic” and should be entered as empty. We have reconsidered our position that the containers should be entered as empty and we are thus informing you we are modifying our position as to this holding. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice of the proposed action was published on August 20, 2008, in Volume 42, Number 35, of the CUSTOMS BULLETIN. CBP received 14 comments in response to the notice.
FACTS:
In your letters of May 11, 1994 and June 20, 1994, on behalf of Dow Corning, you requested 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.
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.
...
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.
...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 . . ., 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 . . .
The Customs and Border Protection (“CBP”) regulations issued under the authority of 19 U.S.C 1322(a) are contained in 19 CFR 10.41a. Section 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.
Section 10.41a(a)(1) also authorizes the Commissioner of CBP 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.
In order to be consistent with CBP’s treatment of similar commodities, such as petroleum slops, and to ensure the safety and security of the transportation of such containers and the CBP officers who may examine or work in close proximity to them, CBP believes that these containers should not be entered as empty, nor should they be manifested as empty. This position is in furtherance of the advance cargo information reporting requirements authorized pursuant to 19 U.S.C. 2071 note; and the implementing CBP regulations set forth in 19 CFR 4.7; 123.91; and 123.92.
Petroleum slops is a generic term of the petroleum industry used to describe the pumpable residue crude oil that is washed or scraped from the inside of petroleum cargo tanks on vessels. Since the gross weight (expressed in pounds or kilos) of slops cannot be determined until they are generated, the weight must be estimated prior to arrival in the U.S., so as to be in compliance with 19 CFR 4.7. The slops can be manifested as “crude oil residue,” “crude oil slops” or other product specific slops. The petroleum slops of foreign origin must also be entered as imported merchandise.
With respect to the residual chemicals under consideration, in your letter of May 11, 1994, you offered to quantify the amount of chemicals upon importation and enter the chemical residue as American Goods Returned (Chapter 9801, Harmonized Tariff Schedule of the United States (“HTSUS”)). We have determined that this is the more accurate procedure for the subject residual chemicals to be entered, should they so qualify for the aforementioned classification, and is in accord with the purpose of the aforementioned advance cargo information reporting requirements. Since, the exact amount of the residual chemical may not be known at the time the advance cargo information is required to be transmitted, the importer may estimate the amount when providing that information to the carrier for transmitting to CBP. Additionally, the same estimated amount should be used at the time of entry of the chemicals. Of course, if a more precise amount is obtained after arrival then the entry should be amended.
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. The subject steel containers may not be manifested, and entered, as empty containers. Furthermore, the chemical residue within the containers should be classified, entered, and manifested
EFFECT ON OTHER RULINGS:
HQ 113129, dated July 12, 1994 is hereby MODIFIED.
Sincerely,
Jeremy Baskin, Director
Border Security and Trade Compliance Division