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HQ 959469



January 16, 1997

CLA-2 RR:TC:FC 959469K

CATEGORY: CLASSIFICATION

TARIFF NO.: 2008.19.9090

Mr. Ron Liddle
Ron's Kootenay Kitchen
20065 Haaglund Lake, B.C.
Canada, VOH 1E3

RE: Request For Reconsideration of New York Ruling Letter (NYRL) 816893; Roasted Sesame
Seed Products

Dear Sir:

In your letter of May 29, 1996, you requested that we reconsider NYRL 816893, dated December 7, 1995. In another letter of the same date (our file number 959466), you requested a ruling that the products covered by NYRL 816893 were eligible as Canadian goods under the North American Free Trade Agreement ( NAFTA). Our decisions follow.

FACTS:

NYRL 816893 held that products described as "Goma", "Savory Sesame", and "Traditional Gomashio" were classified in subheading 200819.9090, Harmonized Tariff Schedule of the United States (HTSUS) (1996), as other edible parts of plants...nuts...and other seeds, prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included, and dutiable under the general rate of 24.6 percent ad valorem or the special rate applicable for Canada of 5.6 percent ad valorem. Classification is requested under subheading 2103.90.8000, HTSUS, as other mixed condiments and mixed seasonings, dutiable under the general rate of 7.1 percent ad valorem or the special rate applicable for Canada of 1.5 percent ad valorem.

"Goma" contains more than 99 percent of roasted sesame seeds, and less than one percent of dulse and kelp (seaweed) and tamari (soy sauce).

"Savory Sesame" contains approximately 98 percent roasted sesame seeds, one percent salt, and less than one percent of dulse, kelp, and tamari.

"Traditional Gomashio" contains approximately 94 percent roasted sesame seeds, and six percent salt.

Sesame seeds from Mexico are exported to Canada where they are cleaned, roasted, and mixed with the other ingredients from Canada and the United States. The products are then exported to the United States in retail packages. For purposes of this decision, we assume the correctness of the origin of the seeds and ingredients used to make the imported products.

ISSUE:

The issue is whether the seed products are classified in heading 2008, HTSUS, and whether the products are entitled to the special rate of duty for Canadian products.

LAW AND ANALYSIS:

Heading 2008, HTSUS, provides for fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included: Nuts, peanuts (ground-nuts) and other seeds, whether or not mixed together.

Heading 2103, HTSUS, provides for sauces and preparations therefor; mixed condiments and mixed seasonings; mustard flour and meal and prepared mustard. Subheading 2103.90.8000, HTSUS, provides for other mixed condiments and mixed seasonings.

Two of the products contain at least 98 percent of roasted sesame seeds and the rest of the ingredients consist of small amounts of seaweed and soy sauce. The third product contains 94 percent of roasted sesame seeds and six percent of salt. We are of the opinion that the small quantities of the other ingredients are not present in sufficient quantities to appreciably alter the desired taste of the sesame seeds that have been, prepared or preserved, and that the products are classified in heading 2008, rather than heading 2103, HTSUS.

Under general note 12(b)(I) and (iii), HTSUS, goods from Canada that are wholly obtained or produced entirely in the territory of Canada, Mexico and/or the United States or goods that are produced entirely in the territory of Canada, Mexico and/or the United States exclusively from originating materials, are eligible for the tariff treatment and quantitative limitations set forth in the tariff schedule as "goods originating in the territory of a NAFTA party". Accordingly the instant products made in Canada with originating materials from Mexico, Canada, and the United States, are eligible for tariff treatment as Canadian goods entitled to the special rate of duty under subheading 2008.19.9090, HTSUS.

HOLDING:

Products that contain 94 percent or more of roasted sesame seeds with small quantities of other ingredients such as salt or seaweed and soy sauce, are classifiable in subheading 2008.19.9090, HTSUS, as other edible parts of plants...nuts...and other seeds, prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not otherwise specified or included, and dutiable at the 1996 general rate of 24 percent ad valorem.

If the sesame seeds, as stated, originate from Mexico and in Canada are cleaned, roasted and packed with small amounts of ingredients originating from the United States and Canada, the products are eligible under General Note 12(b), HTSUS, as goods originating in the territory of a NAFTA party, and entitled to the special rate applicable for Canada of 5.6 percent ad valorem.

NYRL 816893, dated December 7, 1995, is affirmed.

Sincerely,

John Durant, Director

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