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HQ 958920




May 2, 1996

CLA-2 RR:TC:FC 958920 ALS

CATEGORY: CLASSIFICATION

TARIFF NO.: 0811.10.0050

Port Director of Customs
P.O. Box 3130
Lincoln-Juarez Bridge, Building 2
Laredo, TX 78044-3130

RE: Request for Further Review of Protest No. 2304-95-100200, dated October 30, 1995, Concerning Multiple Entries of Frozen Strawberries in Plastic Buckets, Imported from Mexico

Dear Mr. Pitts:

This ruling is on a protest that was filed against your decisions of August 4 & 11, 1994, in the liquidation of multiple entries covering frozen strawberries in plastic buckets (also referred to as plastic pails).

FACTS:

The entries under consideration cover frozen strawberries, with added sugar of less than 25 percent by weight put up in plastic buckets. An invoice and entry furnished with the protest indicates that the cost of the plastic buckets was listed separately therein. The strawberries and the plastic buckets are of Mexican origin. The importer 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?

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. We note that the issue at hand is essentially the same as that presented in Headquarters Ruling Letter (HRL) 957800, dated August 14, 1995, i.e., the dutiability of the plastic buckets.

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 (HTSUSA). 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 importer claims that the buckets are intended for repetitive use and has submitted a letter from an ultimate consignee to that effect, we do not believe that the use by one consignee confirms that the buckets are "clearly suitable for repetitive use" and that this is the usual course of trade. In this regard, we note that a letter from another ultimate consignee indicates that the plastic buckets may be re-used, apparently for a variety of purposes, or are sold to be re-used or recycled by other companies. We believe that the situation is essentially the same as that found in HRL 957800 where we noted that there was no support for the practical, commercial, repetitive use of the buckets for commercial shipping and transportation of the kind of goods presented in the packing containers. In fact, the broker in the instant case notes that after "the strawberries are sent to production, the pails still in good condition are sold, either to other vendors, or to companies which have some use for them." (See HRL's, supra, regarding the meaning of the term "repetitive use" and the use of the container for alternative purpose).

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.

Information which became available to this office subsequent to initiation of the further review process, indicates that some buckets used as packing containers for the imported strawberries may be, in some cases, of U.S. origin. Such buckets may be eligible for duty free entry under the provisions of heading 9801.00, HTSUSA, upon establishment of their origin and upon compliance with appropriate Customs regulations. However, Since the broker has indicated that all the buckets in the protested entries are of Mexican origin, we have not further considered the possible eligibility of the buckets for duty free entry under that heading.

HOLDING:

Frozen strawberries imported in plastic buckets and containing less than 25 percent by weight of sugar are classifiable in subheading 0811.10.0050, HTSUSA, and are subject to a 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.

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
Tariff Classification Appeals Division

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