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HQ 113129

July 12, 1994

BOR-4-07-CO:R:IT:C 113129 GOB

CATEGORY: CARRIER

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.

...
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.

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

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