CLA-2 RR:CR:GC 960814ptl
Port Director
U.S. Customs Service
33 New Montgomery Street
#1501
San Francisco, CA 94105
RE: Protest 2809-97-100965; Cherries in brine.
Dear Port Director:
The following is our decision regarding Protest 2809-97-100965 concerning your classification and assessment of duties on
cherries in brine, packed in plastic drums containing 144
kilograms, net weight.
FACTS:
The merchandise is question consists of cherries which have
been packed and imported in a sulphur brine solution (brined
cherries). The merchandise was entered on October 23, 1996 and
the entry liquidated March 21, 1997. The merchandise was
classified in subheading 0812.10.00, HTSUS, which provides for
fruit and nuts, provisionally preserved (for example, by sulfur
dioxide gas, in brine, sulfur water or in
other preservative solutions), but unsuitable in that state for
immediate consumption: cherries. Duty was assessed in the
amount 18.4 cents per kilogram on the net weight of the contents
of the drums which contained the merchandise. A timely protest
in which the importer claims the duty should have been assessed
only on the drained weight of the merchandise was received by
Customs on June 19, 1997.
In preparing this ruling, consideration has been given to
all the materials which have been submitted to this office,
including a meeting which was held with counsel for the
protestant on July 1, 1997.
ISSUE:
Is the weight of the merchandise, for duty purposes, the net
weight as indicated on the invoice, or the drained weight?
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff
Schedule of the United States (HTSUS) in accordance with the
General Rules of Interpretation (GRIs). The systematic detail of
the HTSUS is such that virtually all goods are classified by
application of GRI 1, that is, according to the terms of the
headings of the tariff schedule and any relative Section or
Chapter Notes. In the event that the goods cannot be classified
solely on the basis of GRI 1, and if the headings and legal notes
do not otherwise require, the remaining GRIs may then be applied
in order.
There is no disagreement over the proper heading in which
the merchandise is classified. Both Customs and the importer
agree that the merchandise is classified in heading 0812, HTSUS.
However, the protestant is claiming that the duty should be
assessed on only the drained weight of the merchandise, not on
the net weight.
The relevant portion of the 1996 HTSUS under consideration
is as follows:
Heading/ Article Description Units
Rates of Duty
Subheading of
Quantity General
0812 Fruit and nuts, provisionally preserved (for
example, by sulfur dioxide gas, in brine, in
sulfur water or in other preservative
solutions), but unsuitable in that state for
immediate consumption:
0812.10.0000 Cherries...................................... kg......
18.4›/kg
In support of its position that Customs should use the
drained weight for duty assessment, the protestant states that it
is standard industry practice to measure the weight of brined
cherries on the basis of the drained weight. Protestant has
introduced affidavits of several members of the cherry importing
industry which state that their merchandise is bought, sold and
priced on the basis of drained weight.
While Customs does not disregard the assertions regarding
the cherry industry's own commercial practice offered by
protestant, Customs believes that such practice has less weight
on the issue that the actual language of the tariff. The HTSUS
is a Congressionally approved document, and its text must be
administered as written. The duty rate imposed by the HTSUS on
brined cherries does not specifically exclude the weight of the
liquid. Customs agrees with protestant that Congress has shown
no consistency in this area and notes that the HTSUS duty rates
for certain vegetables provisionally preserved in heading 0711
specify that the duty is to be assessed on the drained weight
(0711.20.18 - 0711.20.40, HTSUS, various types of olives), while
other vegetables do not receive similar treatment (0711.40.00,
HTSUS, cucumbers). It is because Congress has specifically
identified certain articles which are to be assessed duty based
on drained weight that Customs cannot, on its own initiative,
include other articles.
In an attempt to show that the failure of Congress to
specifically designate that the duty on brined cherries should be
assessed on drained weight, protestant has introduced several
Customs Court decisions which relate to practice under the Tariff
Schedule of the United States (TSUS), the predecessor to the
HTSUS. Chief among these cases is California Processed Fruit Co.
v. United States, 76 Cust. Ct. 1337, C.D. 4646 (1976). The
merchandise in that case was cherries which were imported in
syrup, and the question was whether duty should be assessed on
the weight of the cherries and the syrup or on the weight of the
cherries alone. In reaching its decision that the weight of the
syrup should be excluded, the court based its reasoning on the
fact that the syrup had no commercial value, was included as a
packing medium, and was discarded after importation.
As part of its argument that the instant merchandise is
similar to the merchandise considered by the court, protestant
has submitted material which indicates that the brine liquid is
treated like the syrup and discarded after importation.
All materials which are relied on by petitioner relate to
decisions in which the courts interpreted the TSUS. The HTSUS,
which went into effect January 1, 1989, is a
new tariff system with rules of interpretation and application
somewhat different from the TSUS. As noted in House Conference
Report No. 100-576, dated April 20, 1998, on the Omnibus Trade
and Competitiveness Act of 1988 (P.L. 100-418), decisions by the
Customs Service and the courts interpreting nomenclature under
the TSUS are not to be deemed dispositive in interpreting the
HTSUS. Nevertheless, on a case-by-case basis prior decisions
should be considered instructive in interpreting the HTSUS,
particularly where the nomenclature previously interpreted in
those decisions remains unchanged and no dissimilar
interpretation is required by the text of the HTSUS.
Protestant claims that because Congress did not act to amend
the TSUS provisions relating to cherries, as it did for beans and
peas, as a result of the decisions of the court regarding the
treatment of the packing medium, Customs should exclude the
weight of the sulfur brine solution from the dutiable weight.
However, while Congress may not have specifically addressed
brined cherries when it adopted the HTSUS, it did specifically
consider packing materials. GRI 5(b) states "subject to the
provisions of rule 5 (a) above, 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. However, this provision is not binding when such
packing materials or packing containers are clearly suitable for
repetitive use." (Emphasis added).
In its submissions, protestant has repeatedly stated that
the brined solution has been prepared specifically for use as a
packing material to protect the cherries. Protestant has also
stated that the brine solution is discarded and is not suitable
for repetitive use. For these reasons, the brine solution in
which the cherries are packed is clearly the type of packing
material contemplated by GRI 5(b). When considered in light of
GRI 5(b), the brine solution falls into the category of a packing
material which should be classified with the cherries, and the
total weight of the entered merchandise is subject to duty. The
drums in which the brined cherries are imported are clearly
suitable for repetitive use and are not subject to duty.
HOLDING:
For the reasons stated above, the protest should be DENIED.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, Revised Protest Directive, dated August 4, 1993, a
copy of this decision attached to Customs Form 19, Notice of
Action, should be provided by your office to the protestant
no later than 60 days from the date of this decision and any
reliquidations of entries in accordance with this decision must
be accomplished prior thereto. Sixty days from the date of this
decision the Office of Regulations and Rulings will take steps to
make this 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