HQ 219882: Request For Internal Advice Concerning Eligibility of Frozen Perishables For Same Condition Drawback

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                      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














                                         -2-

          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