CLA-2 CO:R:C:F 088697

Mr. Joey H. Lo
Queen'sway Foods Company
486 Cabot Road
South San Francisco, Ca. 94080

RE: Canned Baby Corn From Thailand

Dear Mr. Lo:

This is in reference to your letters of December 13, 1990 and January 23, 1991, regarding the tariff classification of canned baby corn from Thailand. A label for a 300 UP count can showing the product and other pertinent information, was included with your request.

FACTS:

The product under consideration is described as whole spears of baby corn packed in a water and salt solution in cans. The product, grown in Thailand, weighs 2.90 Kg, net weight, as packed (1.50 Kg net drained weight).

ISSUE:

Is the product classifiable as the vegetable "corn", as an "other" vegetable or as "other edible parts of plants?"

LAW AND ANALYSIS:

The product, known as "baby corn" is immature ears of corn (Zea mays). The variety thereof known as "saccharata", or sweet - 2 -

corn, is classifiable in Chapter 7 of the Harmonized Tariff Schedule of the United States (HTSUSA), which covers edible vegetables and certain roots and tubers. Other varieties of corn are excluded therefrom by Legal Note 2 of that Chapter. These other varieties are classifiable in Chapter 10, HTSUSA, which covers cereals.

Since only sweet corn is classifiable in Chapter 7, HTSUSA, the importer has indicated that several varieties of corn are packaged in its product, and since the majority of corn grown in Thailand, according to the American Embassy in Bangkok, is field corn, we believe it is reasonable to conclude that the subject corn is not classifiable in Chapter 7.

In regard to the possible classification under chapter 10, HTSUSA, we note, according to Chapter note 2 to Chapter 10 of the Explanatory Notes to the Harmonized System, that only rice, once cooked remains in Chapter 10. Since cooking is a normal part of the canning process, we presume that the subject corn has been cooked. Accordingly, we believe it would not be appropriate to classify corn in this chapter.

We considered the possible classification of the corn under subheading 2005.80.00, HTSUSA. Since that subheading only covers sweet corn prepared or preserved otherwise than by vinegar or acetic acid, we do not believe it would apply to the subject product. Also, since Legal Note 3 to Chapter 20, HTSUSA, limits the coverage of Heading 2005 to the products of Chapter 7 or Heading 1105 or 1106, we believe that the subject corn is also excluded from classification under any other provision of Heading 2005, as an other prepared or preserved vegetable, including subheading 2005.90.9500, HTSUSA, as suggested by the importer.

Since the baby corn is excluded from coverage under the previously referenced provisions for the reasons noted, we believe it is classifiable under the provisions relative to edible parts of plants under Heading 2008, HTSUSA.

HOLDING:

Canned baby corn is classifiable under subheading 2008.99.9090, HTSUSA, which covers other edible parts of plants, otherwise prepared or preserved, and is dutiable at a general rate of duty of 7 per cent ad valorem. Such article, if the - 3 -

product of Thailand, which meets the requirements of General Note 3(a)(ii) of the Harmonized Tariff Schedule, regarding the Generalized System of Preferences (GSP), is eligible for a free special rate of duty upon compliance with the provisions of section 10.171 et seq., Customs Regulations (19 CFR 10.171 et seq.).

Sincerely,

John Durant, Director
Commercial Rulings Division