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NY I83434




July 22, 2002

CLA-2-20:RR:NC:2:231 I83434

CATEGORY: CLASSIFICATION MARKING

TARIFF NO.: 2008.11.4500; 2008.11.6000; 2008.19.1040; 2008.19.3020; 2008.19.4000

Mr. Charles Parisi
Parisi Services, Inc.
P.O. Box 91217
Los Angeles, CA 90009

RE: The tariff classification and country of origin marking of Chinese peanuts, Indian cashews, Iranian pistachios, and American almonds that are roasted, or roasted and seasoned, then packaged, in Hong Kong for export to the United States.

Dear Mr. Parisi:

In your letter, dated June 27, 2002, you requested a tariff classification and country of origin marking ruling on behalf of your client, Laiko International Company, Inc., City of Industry, CA.

An examination of the samples indicates that the merchandise is comprised of roasted peanuts, roasted and flavored peanuts, roasted cashews, roasted pistachios, and roasted almonds, each type nut packaged separately in small packets measuring 2 ¼ inches by 2 ¾ inches. Twenty packets are packed together for retail sale in a transparent, plastic bag (280 grams net). Each plastic bag contains 3 packets of “Dry Roasted Peanuts,” 3 packets of “Honey Roasted Peanuts,” 2 packets of “Mustard Peanuts,” 4 packets of “Dry Roasted Cashews,” 4 packets of “Dry Roasted Pistachios,” and 4 packets of “Dry Roasted Almonds.” The package label lists, as ingredients in these products, sugar, honey, maltose, corn syrup, cornstarch, monosodium glutamate, yeast extract, modified starch, paprika and other spices, onion and garlic powder, horseradish, flavoring and food color. These appear to be the “seasoning ingredients” used in making the “Honey Roasted Peanuts” and “Mustard Peanuts.”

In your correspondence you indicate that raw peanuts (originating from China), raw cashews (India), raw pistachios (Iran), and raw almonds (United States), will be shipped to Hong Kong. In Hong Kong they will undergo the following processes: sorting, cleaning, seasoning, dry roasting, and packaging.

The applicable subheading for roasted peanuts and for roasted and flavored peanuts, if entered under quota, will be 2008.11.4500, Harmonized Tariff Schedule of the United States (HTS), 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 rate of duty will be 6.6 cents per kilogram.

The applicable subheading for roasted peanuts and for roasted and flavored peanuts, if entered outside the quota, will be 2008.11.6000, HTS, 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 rate of duty will be 131.8 percent ad valorem. In addition, products classified in subheading 2008.11.6000, HTS, will be subject to additional safeguard duties based on their value, as described in subheadings 9904.12.01 – 9904.12.19.

The applicable subheading for roasted cashews will be 2008.19.1040, HTS, 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, other, including mixtures, Brazil nuts and cashews, cashews. The rate of duty will be free.

The applicable subheading for roasted pistachios will be 2008.19.3020, HTS, 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, other, including mixtures, pignolia and pistachios, pistachios. The rate of duty will be 1 cent per kilogram.

While of American origin, the roasted almonds, which have been advanced in value and improved in condition, and brought from a raw to a finished condition by the processing in Hong Kong, are not eligible for preferential duty treatment as American goods. The applicable subheading for these roasted almonds will be 2008.19.4000, HTS, 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, other, including mixtures, almonds. The rate of duty will be 32.6 cents per kilogram.

In your letter, you inquire, also, as to the country of origin marking requirements for these products.

The marking statute, section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article.

As provided in section 134.41(b), Customs Regulations (19 CFR 134.41(b)), the country of origin marking is considered conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain.

With regard to the permanency of a marking, section 134.41(a), Customs Regulations (19 CFR 134.41(a)), provides that as a general rule marking requirements are best met by marking worked into the article at the time of manufacture. Section 134.44, Customs Regulations (19 CFR 134.44), generally provides that any marking that is sufficiently permanent so that it will remain on the article until it reaches the ultimate purchaser unless deliberately removed is acceptable.

In HQR 730058, dated June 2, 1987, Customs ruled that the roasting of pecan nuts did not result in a substantial transformation in that product. Similarly, in TD 85-158, 19 Customs Bulletin 360, it was held that the roasting of green pistachios did not constitute a substantial transformation in the pistachios. Accordingly, the raw peanuts, cashews, pistachios and almonds that were dry roasted in Hong Kong are not substantially transformed by that processing. Their country of origin, for marking purposes, will be the country that produced the raw nut. In our opinion, however, the “Honey Roasted Peanuts” and “Mustard Peanuts” have been substantially transformed by the processing performed in Hong Kong and, therefore, should be marked as products of Hong Kong.

As previously noted, the submitted sample consists of a sealed, transparent plastic bag. The individual bags, containing the different nut products, are packaged inside in sealed foil bags, each product having an individual color. If these nuts are marketed to the retail consumer in the clear plastic bag, then that would be the container which must be marked with the countries of origin of each product contained therein. If the clear plastic bag is not the container that is marketed to the retail consumer, then the individual foil bags must be marked with the country of origin of the product contained therein.

As the roasted almonds have not been substantially transformed by the processing in Hong Kong, they remain goods of American origin, for marking purposes. The Federal Trade Commission (rather than the U.S. Customs Service) regulates the marking of American goods. Accordingly, although you may choose to do so, Customs would not require that the almonds be marked as products of the United States.

Additional requirements may be imposed on these products by the Food and Drug Administration. You may contact the FDA at:

Food and Drug Administration
Division of Import Operations and Policy
5600 Fishers Lane
Rockville, MD 20857

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR 177).

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 Thomas Brady at (646) 733-3030.

Sincerely,

Robert B. Swierupski
Director

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