us-cbp-cross-rulings-hq-220851•HQ 220851: Dutiability of diesel fuel introduced into a foreign-trade subzone for use in the production of goods when such fuel is purchased from another subzone operator and transferred from one subzone to the other.
HQ 220851: Dutiability of diesel fuel introduced into a foreign-trade subzone for use in the production of goods when such fuel is purchased from another subzone operator and transferred from one subzone to the other.
us-cbp-cross-rulings-hq-220851HQ 220851: Dutiability of diesel fuel introduced into a foreign-trade subzone for use in the production of goods when such fuel is purchased from another subzone operator and transferred from one subzone to the other.Guidance
Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.
HQ 220851
November 3, 1988
FOR-2-03-CO:R:C:E 220851 BC
CATEGORY: Foreign Trade Zones
Mr. George Roberts
District Director
U.S. Customs Service
Honolulu, Hawaii
RE: Dutiability of diesel fuel introduced into a foreign-trade
subzone for use in the production of goods when such fuel
is purchased from another subzone operator and transferred
from one subzone to the other.
Dear Mr. Roberts:
This is in response to your request for internal advice,
dated September 9, 1988, wherein you explained that Maui
Pineapple Company, operator of Subzone 9D, intends to purchase
fuel from Hawaiian Independent Refinery, operator of Subzone 9A,
for use in its production process within the subzone. The fuel
will be transferred from one zone to the other. Maui Pineapple
Company requested a ruling regarding the tax and duty
implications involved in the transaction.
FACTS:
A company operates a foreign-trade subzone (FTZ) within
which it carries on the manufacturing/production of goods. In
order to supply its own energy needs, the company is installing
generators in the zone. The company intends to desist from
purchasing energy from the local utility company, instead to run
its generators on diesel fuel purchased from another subzone
operator. The diesel fuel is produced by this latter subzone
operator within its subzone. The company intends to have the
fuel transferred under bond from one subzone to the other free
from tax and duty liability.
ISSUE:
Whether diesel fuel, purchased by one subzone operator from
another subzone operator, can be transferred free of taxes and
duty from the subzone wherein it was produced to the subzone
wherein it will be used to fuel generators which operate a
manufacturing process.
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LAW AND ANALYSIS:
Customs Regulations permit the transfer of articles from
one FTZ to another (19 CFR 146.66). However, in view of the fact
that the company seeks to admit the diesel fuel into the zone for
the purpose of fueling its generators which operate its
production apparatus in the zone, this fuel cannot be accorded
the duty exemption provided in Section 3 of the Foreign Trade
Zones Act of 1934 (19 U.S.C. 81c) (FTZA). As a consequence, an
entry for consumption would have to be filed, as set forth in
Customs Regulations 146.62(a) and 146.62(b)(2) (19 CFR 146.62(a),
146.62(b)(2)). Although the diesel fuel in question will be
transferred from one zone to another, it will be "considered to
have been constructively transferred to the Customs
territory...". (19 CFR 146.61).
C.S.D. 79-418 held that production equipment is not
admissible into an FTZ free of duty. The United States Court of
International Trade recently held that production machinery and
related capital equipment introduced into an FTZ are not exempt
from duty. Nissan Motor Mfg. Corp., U.S.A. v. United States,
Slip Op. 88-108, 22 Cust. Bull., No. 39, p.32. The holding of
Hawaiian Independent Refinery v. United States, 81 Cust. Ct. 117,
C.D. 4777 (1978), is not applicable to the facts of the proposed
transaction since the proposed transaction involves the within-
zone consumption of fuel which was not created/produced within
the zone (as in the referenced case), but was imported from
outside the zone. C.S.D. 79-418 expressly limited the holding of
Hawaiian Independent Refinery to the particular facts of that
case, a proposition acknowledged with approval in Nissan Motor
Mfg.
19 U.S.C. 81o(e) provides an exemption from state and local
ad valorem taxes on tangible personal property imported into an
FTZ from outside the United States. This provision appears to be
inapplicable to the facts of the proposed transaction since the
diesel fuel in question is not within the meaning of
"merchandise" contained in the FTZA and codified in 19 U.S.C. 81a
through 81u. Outside of the foregoing, we do not herein attempt
to offer interpretations impacting on the laws of any state.
HOLDING:
The transfer of diesel fuel from one FTZ, wherein it was
produced, to another FTZ, wherein it will be used in the
production of other articles (or products), is permitted under
the Customs Regulations, but will involve the assessment and
payment of duties as required upon the admission into an FTZ of
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production and related capital equipment, including supplies or
similar products used in the production process.
Sincerely,
John Durant, Director
Commercial Rulings Division
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