HQ 084928: Classification and Country of Origin of Sugar Coated, Chopped Dates

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                      HQ 084928

                                 September 19, 1989


          CLA-2 CO:R:C:G  084928  SS

          CATEGORY: Classification

          Tariff No.: 0804.10.8000

          Ms. Loretta J. Evans
          Fritz Companies, Inc.
          P.O. Drawer "G"
          Blaine, Washington  98230

          RE:   Classification and Country of Origin of Sugar Coated,
                Chopped Dates

          Dear Ms. Evans:

                This letter is in response to your request dated February
          27, 1989, on behalf of Service Packing Co., concerning the
          classification under the Harmonized Tariff Schedule of the United
          States (HTSUS), and country of origin of whole, pitted dates
          imported from Pakistan into Canada where the dates are further
          processed.

          FACTS:

                The subject merchandise is chopped dates coated with
          dextrose and "Cantab-Plus", which is a form of dextrose.  The
          dates are grown and pitted in Pakistan, then imported into Canada
          where they are first subjected to a dry heat treatment at 115`F,
          for a period of three days.  They are then macerated, chopped
          into 3/8-inch pieces and coated with dextrose and "Cantab-Plus".
          The chopped, coated dates are imported into the United States for
          use in cereals.  The coating facilitates the flow of the dates
          through the macerating machines, which remove any remaining pits.
          The sugar coating mixture comprises 8.75 percent of the product's
          weight.

          ISSUE:

                (1) What is the proper tariff classification of pitted,
          dextrose-"Cantab-Plus", chopped dates?

                (2) What is the country of origin of whole, pitted dates
          imported from Pakistan into Canada where they are sugar coated,
          macerated and chopped for export to the United States?














                                        - 2 -

          LAW AND ANALYSIS:

                Subheading 0804.10.8000, HTSUS, provides for other fresh or
          dried dates.  The Explanatory Notes, which should be consulted
          for guidance in interpretations of the provisions of the HTSUS,
          state that the fruits of Chapter 8 may be fresh, frozen (whether
          or not previously cooked by steaming or in boiling water or
          containing added sweetening matter) or dried (including
          dehydrated, evaporated or freeze-dried.  The Notes further
          specifically state that the addition of small quantities of sugar
          does not affect the classification of fruit in this Chapter, and
          that the Chapter also includes dried fruit (e.g., dates and
          prunes), the exterior of which may be covered with a deposit of
          dried natural sugar....

                Importer contends that the subject merchandise is properly
          classifiable under subheading 2008.99.2500, HTSUS, which provides
          for dates, otherwise prepared or preserved.  Importer bases this
          claim on the premise that the sugar coating and the maceration
          process render the subject dates as "fruits otherwise prepared"
          as well as "containing added sugar".  The Explanatory Notes to
          this heading state that this heading covers fruit preserved or
          prepared otherwise (emphasis added) than by any of the processes
          specified in other Chapters.

                The dates in issue are heat dried, sugar coated, macerated
          and chopped.  These preparations, as well as the small amount of
          sugar added to the subject dates, are clearly within the scope of
          preparations and added sugar allowed under Chapter 8, HTSUS.

                Therefore, since the subject dates are prepared by the
          processes described in Chapter 8, HTSUS, they are precluded from
          classification under Chapter 20, HTSUS.

                In response to your inquiry concerning the country of
          origin of the subject merchandise, Section 134.1(b) of the
          Customs Regulations (19 CFR 134.1(b)) provides that the
          "[c]ountry of origin" means the country of manufacture,
          production, or growth of any article of foreign origin entering
          the United States.  Further work or material added to an article
          in another country must effect a substantial transformation in
          order to render such other country the "country of origin within
          the meaning of Part 134, Customs Regulations (19 CFR Part 134)



















                                        - 3 -

                Substantial transformation requires that "[t]here must be a
          transformation; a new and different article must emerge, 'having
          distinctive name, character, or use.'"  Anheuser-Busch Brewing
          Ass'n v. United States, 207 U.S. 556, 28 S. Ct 204 (1908). This
          test remains the fundamental test for substantial transformation,
          and has been applied to cases involving a variety of issues,
          including marking cases. See Midwood Industries v. United States,
          313 F. Supp. 951, 64 Cust. Ct. (1970).

                In the instant case, the wholly grown, pitted dates, a
          product of Pakistan, are shipped to Canada where they are
          macerated, sugar coated, and chopped.  The maceration process
          merely serves to remove any remaining pits.  The sugar coating
          and chopping do not change the character or use of the dates.
          They are still essentially the same dates and are recognizable as
          such, having the same character and use as the dates exported
          from Pakistan.

                Accordingly, for marking purposes, the subject merchandise
          has not undergone a substantial transformation and is therefore
          a product of Pakistan.

                In determining whether goods are eligible for reduced rates
          under the U.S./Canada Free Trade Agreement (FTA), the General
          Rules of Origin for goods must be read in conjunction with the
          definitions in Article 304, the Interpretative Rules in Annex
          301.2, and the Specific Rules in Annex 301.2.

                Article 301, Chapter 3, General Rules of the FTA state the
          rules of origin for goods in pertinent part:

                ***

                2. In addition, goods originate in the territory of a Party
                if they have been transformed in the territory of either
                Party or both Parties so as to be subject to a change in
                tariff classification as described in Annex 301.2 or to
                such other requirements as the Annex may provide when no
                change in tariff classification occurs, and they meet the
                other conditions set out in that Annex.

                ***

                Section II of the Specific Rules in Annex 301.2 of the FTA
          provides for merchandise classifiable under Chapters 6-14, HTSUS.
          The rules of this section state in relevant part:
















                                        - 4 -

                1. A change from one chapter to another; no changes within
                chapters except that agricultural and horticultural goods
                grown in the territory of that Party shall be treated as
                originating within the territory of that Party even if
                grown from seed or bulbs imported from a third country.

                Since the subject merchandise remains properly classifiable
          under the same chapter (Chapter 8) after importation and
          processing in Canada, such merchandise is not eligible for duty
          preference under the FTA.

          HOLDING:

                The subject merchandise is properly classifiable under
          subheading 0804.10.8000, dutiable at a rate of 35 percent ad
          valorem.

                The merchandise in issue, whole, pitted dates imported from
          Pakistan into Canada where they are heat treated, macerated,
          sugar coated and chopped for export to the United States, is a
          product of Pakistan and not eligible for preference under the
          FTA.

                                     Sincerely,




                                     John Durant, Director
                                     Commercial Rulings Division


























          singh library 084928
          6cc:  Area Director, New York Seaport
          SSingh:jaj:9/19/89