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HQ 114789




August 27, 1999

CON-2-03-RR:IT:EC
114789 GEV

Delia Crawford
Supervisory Entry Officer/ET3
U.S. Customs Service
300 S. Ferry Street
Terminal Island, CA 90731

Dear Ms. Crawford:

This is in response to your cc:mail message of August 18, 1999, requesting internal advice regarding North Pacific Lumber Company wanting to import keruing container flooring lumber pursuant to subsection 9803.00.50, HTSUS. You state that this importer plans to sell the lumber to their customers who are in the business of supplying this product to repair international containers. So far, two (2) entries have been filed.

You state that the declaration set forth below was included with both entries:

North Pacific Lumber Company imports keruing container flooring lumber and plywood. This product is manufactured specifically for use as repair parts for international shipping containers of foreign manufactures. These products are manufactured to the specific specifications, and treated according to international standards needed for these units of international trade. We only sell the product to customers in the business of supplying product for the repair of international containers. All of our documents including order acceptances specify that we are supplying container flooring. We have been assured, by our customers, that the product is only used for the repair of these units of international trade. At this time we know of any other use for this product. Because of the cost paid for the special treatment of the product, there is no economic advantage for us or our customers to sell or use this product in any other way.

Please reference Harmonized Tariff #9803 0050 for more information including “Parts used for the repair and maintenance of containers which are instruments of international traffic are not dutiable pursuant to 10.41a(a)(2) Customs regulations.”

In addition, you further state that a copy of Headquarters ruling letter 113339 was included with their entry summaries. No declaration was made at the time of entry. The merchandise was classified as 4409, 0%. Upon review by the import specialist and Headquarters ruling 950606, the correct classification was determined as 4412, 8%. After the entry was rejected, the entry was resubmitted and reclassified as 9803 with the above declaration.

You ask whether the above declaration meets the requirements of 19 CFR 10.41a(a)(2) and whether the importer is entitled to claim 9803.00.50, HTSUS.

As you know, title 19, United States Code, § 1322(a) (19 U.S.C. § 1322(a)), provides that "[v]ehicles 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(a) are contained in § 10.41a, Customs Regulations (19 CFR § 10.41a). Section 10.41a(a)(2) provides as follows:

Repair components, accessories, and equipment for any container of foreign production which is an instrument of international traffic may be entered or withdrawn from warehouse for consumption without deposit of duty if the person making the entry or withdrawal from ware- house files a declaration that the repair component was imported to be used in the repair of a container of foreign production which is an instrument of international traffic, or that the accessory or equipment is for a container of foreign production which is an instrument of international traffic. The port director must be satisfied that the importer of the repair component, accessory, or equipment had the declared intention at the time of importation. (Emphasis added)

In regard to the claim under subsection 9803.00.50, HTSUS, by the importer of the keruing container flooring lumber in question, such claim would be valid so long as the containers in which the lumber is installed are in fact instruments of international traffic and the port director is satisfied that the requisite declaration set forth in § 10.41a(a)(2), Customs Regulations, is met.

Upon our review of the information you have provided, it appears that the provisions of § 10.41a(a)(2), Customs Regulations, have been met by North Pacific Lumber Company. (We do note, however, that although it may be merely a typographical error in your cc:mail message, it appears the words “do not” have been omitted in the penultimate sentence of the first paragraph of the declaration after the word “we”.) Notwithstanding our opinion, however, as you can see from the express language of § 10.41a(a)(2), the ultimate authority to evaluate the sufficiency of the aforementioned declaration is vested in your port director. We therefore defer to that individual, or his/her designee, in this matter.

Sincerely,

Jerry Laderberg
Chief

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