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HQ 219882


March 27, 1989

I/A-CO:R:C:E 219882

CATEGORY: DRAWBACK (19 U.S.C.1313(J)(1))

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

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

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