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HQ 221835

August 27, 1990

CON-9-04/09-CO:C:R:E 221835 JR


TARIFF NOS.: 9813.00.30; 9813.00.05

District Director of Customs
P.O. Box 9516
El Paso, Texas 79985

RE: Temporary importation under bond for processing and testing pecans

Dear Sir:

This is in response to your memorandum (FILE: CON 9-EP:C JJF) dated October 11, 1989, requesting our advice on the proper classification for a pecan processing and testing operation.


A nut company takes the following steps in testing every shipment of pecans that they receive.

1. Upon receipt, a random sample is taken from as many bags as possible, but at least from every fourth bag. A hole is made into the bag and a number of the unshelled pecans are extracted.

2. A two to four pound sample is taken from a shipment, marked and taken to the laboratory area for testing.

3. A composite sample of 300 grams is divided out. The unshelled pecans are then cracked, and the meats are extracted, weighed, and graded. (This is a processing operation.) This gives an initial indication of the percentage of nut meats to the overall weight of the shipment.

4. The nut meats are then tested in a moisture tester (a testing operation) to determine the percentage of moisture in the meats. Too dry a nut will not crack well and will give broken or shredded meats. Too much moisture means they will just be paying extra for the water involved. This is important when one considers that the nut company will be buying millions of pounds of pecans. The moisture content is also important, because too much moisture means the nuts could develop mold during storage, and be a total loss.

5. The remaining sample of nuts is then visually inspected for pecans that are off-size, mis-shaped, damaged or infested. A count of these off-grade nuts is taken.

6. A separate visual inspection is made for possible signs of mold or disease.

It appears that the nut company performs the above-mentioned steps to determine the price it will offer to the grower for that lot of pecans. The grower will often be present during the testing of his pecans. The grower is then free to accept or reject the offer for his pecans and take his shipment back if he disagrees with the price. The nut company is free to reject the shipment of pecans if it does not meet their specifications.


Whether the processing and testing of the pecans are eligible for entry under multiple provisions of the Harmonized Tariff Schedule of the United States (HTSUS), namely subheadings 9813.00.30 and 9813.00.05, HTSUS (formerly items 864.30 and 864.05, TSUS).


Under subheading 9813.00.30, HTSUS, articles intended solely for testing, experimental, or review purposes may be entered duty-free, temporarily, under bond for their exportation within one year from the date of importation unless an extension for one or more additional periods, which when added to the initial period does not exceed three years, is granted by the district director. Likewise, articles to be repaired, altered or processed (including processes which result in articles manufactured or produced in the United States) may be entered under subheading 9813.00.05, HTSUS.

From the detailed steps of the operation given, all indications are that both a process and a test takes place. Although the customs field office and nut company do not state what the nut company will do with the nuts after acceptance of the shipment, we assume that these pecans will be shelled and exported within the bond period. We also assume that if the nut company rejects the shipment of pecans, it will export, or destroy as an article of commerce, the waste produced as a result of the testing of the shipment in order to comply with subheading 9813.00.30, HTSUS. However, if the nut company accepts the pecan shipment, the nominal waste incurred as a result of testing may be treated in the same manner as the waste generated under the processing provision of subheading 9813.00.05, HTSUS. Under subheading 9813.00.05, HTSUS, duty can be tendered for the waste (extracted pecan shells) resulting from the processing of the pecans.
When an article is entitled to entry under multiple provisions due to the uses that the article will be put to while in the United States, there is no objection to entry under more than one TIB provision on a single entry. See C.S.D. 83-45. The total quantity of articles may, therefore, be entered duty-free under the temporary importation provision in subheading 9813.00.30, HTSUS and in subheading 9813.00.05, HTSUS.


Entry is permitted in this case under multiple provisions of the Harmonized Tariff Schedule since the pecans involved here will be processed under both subheading 9813.00.05, HTSUS, and tested under subheading 9813.00.30, HTSUS.


John Durant, Director

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