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HQ 957800

August 14, 1995

CLA-2 R:C:F 957800 ALS


TARIFF NO.: 0811.10.0060

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

RE: Request for Further Review of Protest No. 2304-95-100014, dated January 18, 1995, Concerning Multiple Entries of Frozen Strawberries in Plastic Buckets, Imported from Mexico

Dear Ms. Adams:

This ruling is on a protest that was filed against your decisions of October 21, 1994, in the liquidation of multiple entries covering frozen strawberries in plastic buckets.


The entries under consideration cover frozen strawberries, with added sugar of 27 percent (+/- 1 percent), put up in plastic buckets containing 28 pounds. An invoice furnished with the protest indicates that the cost of the plastic buckets was included in the unit price for the strawberries. Both the strawberries and plastic buckets are of Mexican origin. The Customs broker listed the strawberries and plastic buckets as separate line items on the entries and proportioned the unit cost between them. The broker 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."


What is the classification of frozen strawberries imported in plastic buckets? Are plastic buckets separately dutiable from their contents?


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. While that classification is correct for the strawberries as entered, we note that invoice number 322 forwarded with the protest specifies that each unit contains 27 percent sugar (+/- 1 percent). Based thereon, the strawberries would be classifiable in subheading 0811.10.0060, HTSUSA.

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 (TSUSA). 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 broker claims that the buckets are manufactured with the intent that they will be repetitively used, there is no support for the practical, commercial, repetitive use of the buckets. In fact, the broker notes that the buckets are not reused for a variety of reasons. The reasons include: the product is sold throughout the United States and Canada and it is not economically feasible to move the pails to a location for return to Mexico. The broker further notes that having to pay freight from various locations on empty pails for return to Mexico "is too time consuming and could lead to product contamination if the pails are not washed properly prior to reuse." It also notes that a customer may buy various loads and the product may be stored for several months prior to being shipped for processing and to satisfy consumer demand. Thus, while the buckets may potentially be capable of repetitive use, they are not available for repetitive use in the practical and commercial sense nor are they used for commercial shipping and transportation of the kind of goods presented in the packing container .

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.


Frozen strawberries imported in plastic buckets weighing 28 pounds and containing over 25 percent by weight of sugar are classifiable in subheading 0811.10.0060, HTSUSA, and are subject to 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.


John Durant, Director
Commercial Rulings Division

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