ENT-1-03-CO:R:C:E 221804 TG
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
Commercial Rulings Division