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NY I88957




December 17, 2002

CLA-2-20:RR:NC:2:231 I88957

CATEGORY: CLASSIFICATION MARKING

TARIFF NO.: 2008.19.9010

Mr. Benoit Hamelin
Roe Logistics
Div. Roe Customs Services Limited
474 rue McGill, Suite 300
Montréal, Québec H2Y 2H2

RE: The tariff classification and country of origin marking of salted and roasted macadamia nuts from Australia.

Dear Mr. Hamelin:

In your letter, dated November 26, 2002, you requested a tariff classification and country of origin marking ruling on behalf of your client, Les Aliments PAPCO Foods, Inc., St-Laurent, Québec.

An examination of the submitted sample indicates that the merchandise is comprised of Vaconut® brand, dry roasted and salted macadamia nuts. The net weight of the sample packet is 450 grams. The product is also available in packets of 20 grams and 150 grams.

The applicable subheading for dry roasted and salted macadamia nuts will be 2008.19.9010, 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, other, including mixtures, other, including mixtures, other, macadamia nuts. The rate of duty will be 17.9 percent ad valorem.

In examining the sample accompanying your letter, it was noted that country of origin marking for the macadamia nuts does not appear on either the front or the back of the bag. However, the address of the Canadian distributor appears on the back of the bag and reads, as follows:

Les Aliments
PAPCO Foods Inc.
Ville St-Laurent
(Québec) Canada
H4N 1V8

The marking statute, section 304, Tariff Act of 1930, as amended (19 USC 1304), provides that, unless excepted, every article of foreign origin (or its container) imported into the United States 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.

Section 134.46, Customs Regulations (19 CFR 134.46), deals with cases in which the words "United States," or "American," the letters "U.S.A.," any variation of such words or letters, or the name of any city or locality in the United States, or the name of any foreign country or locality other than the country or locality in which the article was manufactured or produced, appears on an imported article or its container, and those words, letters or names may mislead or deceive the ultimate purchaser as to the actual country of origin. In such a case, there shall appear, legibly and permanently, in close proximity to such words, letters, or name, and in at least a comparable size, the name of the country of origin preceded by "Made in," Product of," or other words of similar meaning.

In the case of the instant sample of macadamia nuts, the name and address of the distributor, “PAPCO Foods, Inc.(Quebec) Canada” may, in our opinion, be misleading as to the country of origin of these goods. Therefore, assuming the macadamia nuts were harvested in Australia and, also, roasted and salted in that country, the retail bag must be marked as a “Product of Australia,” as specified in Section 134.46, CR.

Additional requirements may be imposed on this product 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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