HQ 0083352 - Peanut Butter powder - United States International Trade Commision Rulings

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HQ 083352

October 17, 1989

CLA-2:CO:R:C:G 083352 SER

CATEGORY: CLASSIFICATION

TARIFF NO.: 2008.11.0600

Mr. Jack Sollazzo
Ingredient Resources Inc.
160 Eileen Way
Syosset, NY 11791

RE: Peanut Butter powder

Dear Mr. Sollazzo:

This is in reference to your letter of September 9, 1988, requesting a tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of a peanut butter powder from Canada.

FACTS:

The merchandise at issue is an oily, tan, granular material with non-uniform particle size. It is said to be composed of 90 percent roasted peanuts, 7 percent dextrose, 2 percent salt, and 1 percent fructose. The product is produced by grinding the ingredients into granulated form. The oil from the peanut has not been extracted, and the product has not been dried. The imported product's stated use is as a food topping for baked goods or ice cream, as a filling or flavoring for cookies, cakes, candy bars and other similar uses.

ISSUE:

What is the proper classification of the peanut butter powder from Canada under the HTSUSA?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes.

There are several competing provisions under which this product can be classified: heading 1208, HTSUSA, provides for flours and meals of oil seeds or oleaginous fruits; heading 1901, HTSUSA, provides for food preparations of flour, meal, starch or
malt extract; and heading 2008, HTSUSA, which provides for fruits, nuts, and edible parts of plants, otherwise prepared or preserved.

The Explanatory Notes constitute the official interpretation of the tariff at the international level. The Explanatory Notes to heading 1208, HTSUSA, limit this heading to non-defatted, partially defatted, or partially refatted flour and meals of the products covered by the headings of this Chapter. Peanuts (ground nuts) are provided for in heading 1202, HTSUSA. However, the Explanatory Notes stress the fact that roasted peanuts are excluded from this heading and fall in Chapter 20. The merchandise at issue is prepared from roasted peanuts, which are its primary ingredient. Since the primary ingredient is excluded from heading 1202, HTSUSA, the ground product cannot be classified in heading 1208, HTSUSA. This is supported by the Explanatory Notes' exclusion of peanut butter (a product also prepared by grinding roasted peanuts) from Chapter 12, directing such classification to Chapter 20.

Heading 1901, HTSUSA, provides for food preparations of flour, meal, starch or malt extract, not elsewhere specified or included. The main issue to be addressed here is whether the instant product is a preparation of "flour" or "meal".

Under standards set forth in the HTSUSA Explanatory Notes and by utilizing industry standards, it would appear that the merchandise at issue is not a preparation of flour or meal. Since Chapter 19 does not set specific standards of what constitutes flour or meal, Customs has adopted the standards of Chapter 11, HTSUSA. The standard sets forth parameters which limit the particle size of a product to determine if it can be labeled a flour or meal. Under the standard, the product at issue can not be labeled a flour or meal. In addition, the National Import Specialist at the New York branch of Customs, determined after talking with individuals in the industry that the product at issue would not be labeled a flour or meal by general industry standards.

Heading 2008, HTSUSA, provides for nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter, not elsewhere specified or included. The Explanatory Notes to this heading include peanut butter, a ground peanut product, as is the product at issue.

HOLDING:

The merchandise at issue is classifiable, under GRI 1, under
subheading 2008.11.0060, HTSUSA, which provides for fruit, nuts and other edible parts of plants, otherwise prepared or preserved: peanuts, other. The rate of duty, if this merchandise is considered "goods originating in the territory of Canada", is 5.9 cents/kg under the special duty rate column. Otherwise the rate of duty is 6.6 cents/kg. In addition, the merchandise is subject to quota limitation of 775,189 kilograms set forth in subheading 9904.20.20, HTSUSA.

Sincerely,

John Durant, Director
Commercial Rulings Division

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