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NY M82585





May 10, 2006

CLA-2-10:RR:NC:SP:231 M82585

CATEGORY: CLASSIFICATION

TARIFF NO.: 1008.90.4000

Ms. Susan Todd
Gram Pty. Ltd.
P.O. Box 557
Lindfield NSW 2070
Australia

RE: The tariff classification of heat processed flaked triticale from Australia.

Dear Ms. Todd:

In your letter dated April 12, 2006, you requested a tariff classification ruling.

The merchandise, “Heat Processed Flaked Triticale” (i.e. hybrid grains, a cross between wheat and rye) is said to consist of 100 percent triticale grains that are placed into a hot air stream, where they are “softened” to enable the grains to be further processed into flakes. You indicate that this product is intended for use as an ingredient in biscuits, crackers, wholegrain breads, “Muesli” style cereals and granola bars. This product will be packaged in 25-kilogram bags and is not intended for retail sale.

The applicable subheading for the “Heat Processed Flaked Triticale” will be1008.90.4000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for buckwheat, millet and canary seed; other cereals (including wild rice): other cereals (including wild rice), Other. The rate of duty will be 1.1 percent ad valorem.

General Note 28(b), HTSUS, sets forth the criteria for determining whether a good is originating under the UAFTA. General Note 28(b), HTSUS, (19 U.S.C. § 1202) states, in pertinent part, that

For the purposes of this note, subject to the provisions of subdivisions (c), (d), (m) and (n) thereof, a good imported into the customs territory of the United States is eligible for treatment as an originating good of a UAFTA country under the terms of this note only if –

(i) the good is a good wholly obtained or produced entirely in the territory of Australia or of the United States, or both;

(ii) the good was produced entirely in the territory of Australia or of the United States, or both, and—

(A) each of the nonoriginating materials used in the production of the good undergoes an applicable change in tariff classification specified in subdivision (n) of this note;

(B) the good otherwise satisfies any applicable regional value content requirement referred to in subdivision (n) of this note; or

(C) the good meets any other requirements specified in subdivision (n) of this note;
and such good satisfies all other applicable requirements of this note;

(iii) the good was produced entirely in the territory of Australia or of the United States, or both, exclusively from materials described in subdivision (b)(i) or (b)(ii) of this note; or

(iv) the good otherwise qualifies as an originating good under this note,
and is imported directly into the customs territory of the United States from the territory of Australia.

Based on the facts provided, the goods described above qualify for UAFTA preferential treatment, because they will meet the requirements of HTSUS General Note 28(b)(i). The goods will therefore be entitled to a free rate of duty under the UAFTA upon compliance with all applicable laws, regulations, and agreements.

This merchandise is subject to The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (The Bioterrorism Act), which is regulated by the Food and Drug Administration (FDA). Information on the Bioterrorism Act can be obtained by calling FDA at telephone number (301) 575-0156, or at the Web site www.fda.gov/oc/bioterrorism/bioact.html.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Thomas Brady at 646-733-3030.

Sincerely,

Robert B. Swierupski
Director,

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