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HQ 960814




September 17, 1998

CLA-2 RR:CR:GC 960814ptl

CATEGORY: CLASSIFICATION

TARIFF NO.: 0812.10.00

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......

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

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