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NY M87806

December 14, 2006

CLA-2-20:RR:NC:N2:228 M87806


TARIFF NO.: 2005.90.9700

Mr. Pascale Snyder
Whyte’s Food Corporation, Inc.
1540 Ave. Des Patriotes
Ste-Rose, Laval, Quebec H7L 2N6 Canada

RE: The tariff classification and status under the North American Free Trade Agreement (NAFTA), of capers from Canada; Article 509

Dear Mr. Snyder:

In your letters dated September 21, 2006 and October 23, 2006 you requested a ruling on the status of capers from Canada under the NAFTA.

A sample and a description of the manufacturing process were provided with your October letter. Capers, products of Morocco and/or Turkey will be imported into the United States in drums, provisionally preserved in a high-salt brine, and exported in that same condition to Canada. In Canada, the capers will be removed from the brine, washed, and repacked into 16 and 32-ounce containers in a new brine composed of water, salt and vinegar. A sample of the repackaged product was analyzed by the Customs laboratory and found to contain 0.45 percent acetic acid. The repackaged capers will then be returned to the United States.

In your September letter, you asked if the capers returned to the United States from Canada would be classified as American Goods Returned. They will not. The capers are products of Morocco or Turkey, exported to Canada in the same condition as they were imported into the United States, i.e., provisionally preserved in salt brine. They will not have undergone a substantial transformation in the United States prior to their shipment to Canada, and will remain products of their respective countries of growth.

The applicable tariff provision for the capers returned to the United States will be 2005.90.9700, Harmonized Tariff Schedule of the United States (HTSUS), which provides for other vegetables prepared or preserved otherwise than by vinegar or acetic acid, not frozen, other than products of heading 2006other vegetablesother. The general rate of duty will be 11.2 percent ad valorem.

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(b), HTSUS, sets forth the criteria for determining whether a good is originating under the NAFTA. General Note 12(b), HTSUS, (19 U.S.C. § 1202) states, in pertinent part, that

For the purposes of this note, goods imported into the customs territory of the United States 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" only if--

(i) they are goods wholly obtained or produced entirely in the territory of Canada, Mexico and/or the United States; or

(ii) they have been transformed in the territory of Canada, Mexico and/or the United States so that--

(A) except as provided in subdivision (f) of this note, each of the non-originating materials used in the production of such goods undergoes a change in tariff classification described in subdivisions (r), (s) and (t) of this note or the rules set forth therein, or

The tariff shift rule set forth in General Note 12(t) for heading 2005, viz., a change to headings 2001 through 2007 from any other chapter, is satisfied in this case. There is a change to heading 2005, HTSUS, from another chapter (chapter 7, heading 0711, HTSUS). However, General Note 12(s) provides as follows:

Fruit, nut and vegetable preparations of chapter 20 that have been prepared or preserved merely by freezing, by packing (including canning) in water, brine, or natural juices, or by roasting, either dry or in oil (including processing incidental to freezing, packing or roasting), shall be treated as an originating good only if the fresh good was wholly produced or obtained entirely in the territory or one or more of the NAFTA parties.

Since the capers in this case are classified in subheading 2005.90.9700, HTSUS (a vegetable preparation of chapter 20), prepared in Canada by packing in brine, and they were not harvested in the territory of a NAFTA country, the capers will not qualify as originating goods under NAFTA.

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

Pursuant to title 19 United States Code, Section 3005 The Harmonized Tariff Schedule of the United States is expected to be amended effective 1/1/07. The amendments are expected to affect the classification of your merchandise. Pursuant to Section 3005 c, the report recommending those changes has been sent to the President for proclamation of the changes. Upon the expiration of sixty legislative days, in the absence of Congressional action, the recommended changes will become law. Accordingly based on that recommendation, it is anticipated that your merchandise will be classified in subheading 2005.99.9700 under the 2007 Harmonized Tariff Schedule. Under the circumstances, this classification under the 2007 tariff is advisory only.

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 Stanley Hopard at 646-733-3029.

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.


Robert B. Swierupski

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