CLA-2 R:C:F 957800 ALS
District Director of Customs
P.O. Box 3130
Lincoln-Juarez Bridge, Building 2
Laredo, TX 78044-3130
RE: Request for Further Review of Protest No. 2304-95-100014,
dated January 18, 1995, Concerning Multiple Entries of
Frozen Strawberries in Plastic Buckets, Imported from Mexico
Dear Ms. Adams:
This ruling is on a protest that was filed against your
decisions of October 21, 1994, in the liquidation of multiple
entries covering frozen strawberries in plastic buckets.
FACTS:
The entries under consideration cover frozen strawberries,
with added sugar of 27 percent (+/- 1 percent), put up in plastic
buckets containing 28 pounds. An invoice furnished with the
protest indicates that the cost of the plastic buckets was
included in the unit price for the strawberries. Both the
strawberries and plastic buckets are of Mexican origin. The
Customs broker listed the strawberries and plastic buckets as
separate line items on the entries and proportioned the unit cost
between them. The broker claims that the plastic buckets are
separately dutiable pursuant to General Rules of Interpretation
(GRI) 5(b) because they are "clearly suitable for repetitive
use."
ISSUE:
What is the classification of frozen strawberries imported
in plastic buckets? Are plastic buckets separately dutiable from
their contents?
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LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) is governed by
the GRI's taken in order. GRI 1 provides that the classification
is determined first in accordance with the terms of the headings
and any relative section and chapter notes. If GRI 1 fails to
classify the goods and if the headings and legal notes do not
otherwise require, the remaining GRI's are applied, taken in
order.
In reviewing the documents of record we noted that the
importer and Customs at the port of entry agreed that the frozen
strawberries were classifiable in subheading 0811.10.0050,
HTSUSA. While that classification is correct for the
strawberries as entered, we note that invoice number 322
forwarded with the protest specifies that each unit contains
27 percent sugar (+/- 1 percent). Based thereon, the
strawberries would be classifiable in subheading 0811.10.0060,
HTSUSA.
The principal question raised in the protest is whether the
plastic buckets in which the strawberries are imported meet the
requirements of GRI 5(b) and are, therefore, separately dutiable.
This rule provides, as herein pertinent, that packing materials
and packing containers presented with the goods therein shall be
classified with the goods if they are of a kind normally used for
packing such goods. It further provides that this rule is not
binding when such packing materials or packing containers are
clearly suitable for repetitive use. Thus, the question is
whether the plastic buckets in the instant case are the type of
container normally used for packing strawberries and whether the
containers are "clearly suitable for repetitive use". There is
no dispute as to the buckets being a "normal" container for
frozen strawberries. Their suitability for repetitive use is at
issue.
In considering this matter we note that in HRL 084068, dated
July 21, 1989, we held that the term "repetitive use" was
understood to have the same meaning as the term "reuse" under the
Tariff Schedules of the United States Annotated (TSUSA). That
ruling held that the term meant repetitive use in the practical,
commercial sense, and the use must be for commercial shipping and
transportation of the kind of goods presented in the packing
container.
The term "repetitive use" is to be construed as demanding
more than just the possibility of repetitive use. The fact that
the container may be used for alternative purposes, e.g., trash - 3 -
can, storage bin, does not satisfy this requirement. (See HRL
088170, dated February 20, 1991 and HRL 089527, dated August 12,
1991).
Although the broker claims that the buckets are manufactured
with the intent that they will be repetitively used, there is no
support for the practical, commercial, repetitive use of the
buckets. In fact, the broker notes that the buckets are not
reused for a variety of reasons. The reasons include: the
product is sold throughout the United States and Canada and it is
not economically feasible to move the pails to a location for
return to Mexico. The broker further notes that having to pay
freight from various locations on empty pails for return to
Mexico "is too time consuming and could lead to product
contamination if the pails are not washed properly prior to
reuse." It also notes that a customer may buy various loads and
the product may be stored for several months prior to being
shipped for processing and to satisfy consumer demand. Thus,
while the buckets may potentially be capable of repetitive use,
they are not available for repetitive use in the practical and
commercial sense nor are they used for commercial shipping and
transportation of the kind of goods presented in the packing
container .
Based on the above, we have concluded that the plastic
buckets containing the strawberries are of a kind normally used
for packing such goods, but they are not clearly suitable for
repetitive use as required by GRI 5(b). Therefore, they are
dutiable with their contents.
HOLDING:
Frozen strawberries imported in plastic buckets weighing 28
pounds and containing over 25 percent by weight of sugar are
classifiable in subheading 0811.10.0060, HTSUSA, and are subject
to general rate of duty of 13.5 percent ad valorem. The plastic
buckets in which the strawberries are imported are dutiable with
their contents.
Frozen strawberries in plastic buckets, which are both the
products of Mexico, are eligible for preferential treatment under
NAFTA pursuant to General Note 12(b)(iii), HTSUSA.
Since the rate of duty under the classification indicated
above is the same as the liquidated rate, you are instructed to
deny the protest in full.
A copy of this ruling should be attached to the Customs Form
19 and provided to the protestant as part of the notice of action
on the protest.
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In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be provided by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with this decision
must be accomplished prior to the mailing of the decision. Sixty
days from the date of the decision the Office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS and the public
via the Diskette Subscription Service, Freedom of Information Act
and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division