HQ 0221804 - Duty free entry of hazardous waste material under 19 CFR 10.151 - United States International Trade Commision Rulings

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HQ 221804
December 28, 1989

ENT-1-03-CO:R:C:E 221804 TG

CATEGORY: RESTRICTED MERCHANDISE

Mr. W. G. Pennell
Manager Import/Export Compliance
PPG Industries, INC.
One PPG Place
Pittsburgh, PA 15272

RE: Duty free entry of hazardous waste material under 19 CFR 10.151

Dear Mr. Pennell:

This is in response to your letter of September 29, 1989, requesting a ruling as to whether prospective imports of hazardous waste materials valued under $5, should be passed free of duty and tax, and without the preparation of an entry or entry summary, under the provisions of 19 CFR 10.151.

FACTS:

PPG Industries, Inc. (PPG), plans to begin importing certain hazardous waste material which will be generated and shipped by PPG Canada, Inc. from the Toronto, Ontario, Canada area. According to your letter, the shipments will be imported at the port of Buffalo, New York. These imports will be transported direct from PPG Canada to a PPG energy recovery unit in Circleville, Ohio, where the waste material and containers will be completely destroyed by incineration. Only heat from the incinerator is recovered and used to heat water at the PPG Circleville facility.

You state that the importation of these hazardous waste materials has been approved by the U.S. EPA under EPA I.D. # OHD- 004304689, designating the PPG Circleville treatment and disposal process. All other national, state and locally-required permits and notifications have been or will be executed prior to these shipments.

PPG believes that the above-described imports are covered explicitly by 19 CFR 10.151, and should be passed free of duty and tax, and without the preparation of an entry, as importations having a fair retail value in the country of shipment not exceeding $5.

ISSUE:

Whether the hazardous waste materials should be passed free of duty and tax, and without the preparation of an entry or entry summary under the provisions of 19 CFR 10.151.

LAW AND ANALYSIS:

Section 10.151 of the Customs Regulations states that "pursuant to section 321(a)(2)(c), Tariff Act of 1930, as amended (19 U.S.C. 1321(a)(2)(c)), the district director shall pass free of duty and tax and without the preparation of an entry, any importation having a fair retail value in the country of shipment not exceeding $5, unless he has reason to believe that the shipment is one of several lots covered by a single order or contract and that it was sent separately for the express purpose of securing free entry therefore or of avoiding compliance with any pertinent law or regulation."

You state that "the waste material to be imported has no value in Canada as it is fit only for destruction in the condition in which it will be imported." In fact, the seller must pay the buyer for handling and destroying the material. You maintain that this is prima facie evidence of the zero value of the involved material in Canada.

However, we do not believe that hazardous waste materials fall under 19 CFR 10.151. The purpose of this section is to provide administrative ease when dealing with importations of nominal value. For example, it is intended to be applied to tourists bringing in trinkets. It is to be used when the expense and inconvenience of collecting the duty accruing thereon would be disproportionate to the amount of such duty. See, Section 321 of the Tariff Act of 1930 (19 U.S.C. 1321).

In our opinion, 10.151 applies to those very simple cases which don't involve any other agency's laws. It may be that the hazardous waste has a value under $5. But of greater concern is the public policy interest of bringing in wastes without filing an entry. Customs would have no way of keeping track of this waste once it entered the U.S. You state that the U.S. EPA approved the importation. However, the documentation which you supplied us, was from the State of Ohio Hazardous Waste Facility Approval Board. This is not the equivalent of notifying the federal EPA. Since the waste must travel interstate to reach the waste facility in Circleville, Ohio, we are hesitant to allow an importation without an entry as there may be a conflict with both federal and state laws. Moreover, we want a record of the arrival. In our view this is consistent with the intent of section 10.151.

You may still be able to bring the waste in free of duty depending on how it is classified under the Harmonized Tariff Schedule (HTS). However, your generic description does not enable us to classify the waste at this time.

HOLDING:

Accordingly, PPG may not bring in the described imports without preparation of an entry pursuant to section 10.151 of the Customs Regulations.

Sincerely,

John Durant, Director

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