I/A-CO:R:C:E 219882
Mr. Robert Trotter
Assistant Regional Commissioner, Operations
Pacific Region
300 North Los Angeles Street
P.O.Box 2071
Los Angeles, California 90053-3379
RE: Request For Internal Advice Concerning Eligibility of Frozen
Perishables For Same Condition Drawback
Dear Sir:
The following is in reply to your request for Internal Advice
contained in your memorandum dated October 14, 1987 (DRA-2-
O:C:L:RMA:dw).
FACTS:
Fresh raspberries were imported from Canada in plastic pails
or drums. Prior to importation, the stems were removed and the
raspberries were washed. After importation, the bulk containers
were placed in storage and the raspberries were frozen. Nothing
further was done to the containers of frozen raspberries. Some
of the containers of frozen raspberries were exported and claimed
to be eligible for same condition drawback.
ISSUE:
The issue is whether imported fresh raspberries that are
frozen after importation and then exported, are in the same
condition as imported under 19 U.S.C. 1313(j)(1) and/or whether
the freezing of the raspberries was a permissible incidental use.
LAW AND ANALYSIS:
Direct identification same condition drawback under 19 U.S.C.
1313(j)(1) provides for drawback for imported duty-paid
merchandise that is not used in the United States and is exported
within three years in the same condition as it was in when
imported. The law further provides that the performing of
incidental operations including, but not limited to, testing,
cleaning, repacking, and inspecting on the imported merchandise
itself that does not amount to a manufacture or production under
-2-
19 U.S.C. 1313 (a) or (b) shall not be treated as a use of the
imported merchandise.
We agree with the position of the claimant that the mere
freezing of the raspberries does not amount to a manufacture or
production under 19 U.S.C. 1313(a) or (b). However, we do not
agree that the freezing of fresh raspberries is an incidental
permissible use to preserve the shelf life of the raspberries.
The tariff schedules treat fresh and frozen raspberries
differently for duty purposes which is an indication that they
are two different articles of commerce. Fresh raspberries
entered during the period from September 1 in any year to June 30
of the following year are classifiable under subheading
0810.10.20, Harmonized Tariff Schedule of the United States
(HTSUS), subject to the general rate of duty of 0.7 cents per
kilogram, and if fresh raspberries are entered during any other
period, they are classifiable under subheading 0810.20.90, free
of duty, whereas, frozen raspberries are classifiable under
subheading 0811.20.20, HTSUS, subject to the general rate of duty
at 7 percent ad val.
The submission notes the limited life span of fresh fruits
and vegetables and the impracticality of the application of the
same condition drawback laws to perishable merchandise. The shelf
life for fresh raspberries is a matter of days whereas the life
span for frozen raspberries is a matter of years.
But more important, the freezing of fresh raspberries results
in a chemical reaction and changes their condition. The thawing
of frozen raspberries will not return them to the same condition
as they were in their original fresh state.
HOLDING:
Imported duty-paid fresh raspberries that are frozen after
importation are not eligible for same condition drawback under 19
U.S.C. 1313(j)(1).
Sincerely,
John A. Durant
Director
Commercial Rulings Division