HQ 221835

August 27, 1990

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

CATEGORY: Entry/Liquidation

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.

FACTS:

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.

ISSUE:

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).

LAW AND ANALYSIS:

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.

HOLDING:

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.

Sincerely,

John Durant, Director

Commercial Rulings Division