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NY N025005




March 28, 2008

CLA-2-20:OT:RR:E:NC:SP:231

CATEGORY: CLASSIFICATION

TARIFF NO.: 2008.11.4500; 2008.11.6000

Ms. Marion Bradnam
Andina Group Int’l. Inc.
1 Peace Bridge Plaza (Ste M9)
Buffalo, NY 14213

RE: The tariff classification, country of origin, and status under the North American Free Trade Agreement (NAFTA), of Chinese blanched peanuts that have been roasted and seasoned in Canada; Article 509

Dear Ms. Bradnam:

In your letter dated March 19, 2008, submitted on behalf of Trophy Foods Inc. (Mississauga, Ontario, Canada), you requested a ruling on the status of “Jalapeno Kettle Cooked Peanuts” from Canada under the NAFTA.

Your client has outlined a scenario in which peanuts, grown and blanched in China, will initially be shipped from China to Canada. In Canada, the blanched peanuts will be cooked (roasted) in a large oil roasting machine. A jalapeno seasoning mix will then be applied to the roasted peanuts. (The seasoning will represent less than 10% of the weight of the total product.) The roasted, jalapeno-seasoned peanuts will then be packed into cans, nitrogen flushed and sealed. The filled, sealed cans will be packed into cartons, which will then be sold to retailers, distributors and other customers in the United States.

The applicable tariff provision for the finished “Jalapeno Kettle Cooked Peanuts,” if entered under quota, will be 2008.11.4500, Harmonized Tariff Schedule of the United States (HTSUS), which 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: peanuts (ground nuts): other: described in additional U.S. Note 2 to chapter 12 and entered pursuant to its provisions. The general rate of duty will be 6.6 cents per kilogram.

The applicable tariff provision for the finished “Jalapeno Kettle Cooked Peanuts,” if entered outside the quota, will be 2008.11.6000, HTSUS, which 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: peanuts (ground nuts): other: other. The general rate of duty will be 131.8 percent ad valorem. Products classified in subheading 2008.11.6000, HTSUS, are also subject to additional safeguard duties based on their value, as described in subheadings 9904.12.01—9904.12.19, HTSUS.

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/.

General Note 12(a)(i), HTSUS, requires that, for NAFTA eligibility, goods produced in Canada must originate in the territory of a NAFTA party, under the terms of GN 12, and must also qualify to be marked as goods of Canada under the terms of the NAFTA marking rules.

Due to the fact that both blanched peanuts and seasoned roasted peanuts are classifiable in subheading 2008.11, HTSUS, we find that the instant product fails to originate in the territory of a NAFTA party under the terms of GN 12. That is, the non-originating materials (Chinese blanched nuts) fail to undergo the change in tariff classification required under GN 12(t)/20.3, HTSUS.

Likewise, we find that the instant product does not meet the requirements for marking as a product of Canada, as set forth in section 102.20(d) of the Customs Regulations (19 CFR 102.20(d)), and retains its identity as Chinese merchandise.

Accordingly, the merchandise does not qualify for preferential treatment under the NAFTA, and its country of origin for marking and duty purposes is China.

These goods may be subject to regulations or restrictions administered by the U.S. Department of Agriculture, Animal and Plant Health Division (APHIS), and Agricultural Marketing Service (AMS). You may contact these agencies regarding possible applicable regulations at the following locations:

U.S. Department of Agriculture
APHIS
Plant Protection and Quarantine Permit Unit 4700 River Road, Unit 136
Riverdale, MD 20737-1236
Telephone number: 877-770-5990

Marketing Order Administration Branch
Fruit and Vegetable Programs
USDA
AMS
4700 River Road, Unit 155, Suite 5D03
Riverdale Park, MD 20737-1227
Telephone: (301) 734-5246
FAX: (301) 734-5275

This merchandise is also 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 301-575-0156, or at the Web site www.fda.gov/oc/bioterrorism/bioact.html.

This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 C.F.R. 181).

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 Nathan Rosenstein at 646-733-3030.

Should you wish to request an administrative review of this ruling, submit a copy of this ruling and all relevant facts and arguments within 30 days of the date of this letter, to the Director, Commercial Rulings Division, Headquarters, U.S. Customs and Border Protection, 1300 Pennsylvania Ave. N.W., (Mint Annex), Washington, D.C. 20229.

Sincerely,

Robert B. Swierupski
Director,

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