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NY J80033




January 21, 2003

CLA-2-20:RR:NC:2:231 J80033

CATEGORY: CLASSIFICATION MARKING

TARIFF NO.: 2008.11.4500; 2008.11.6000

Mr. Steven Kerr
Orchard Valley Harvest
406 Orange Avenue
Patterson, CA 95363

RE: The tariff classification and country of origin marking of flavored and thinly coated, roasted peanuts from India.

Dear Mr. Kerr:

In your letter, dated January 3, 2003, you requested a tariff classification and country of origin marking ruling.

An examination of the sample, a small cello bag of BonkersTM brand “Peanut Crackers,” found this product to consist of flavored and thinly coated, roasted, individual peanuts. The ingredients are peanuts, edible oil, edible starches, maida (flour), skim milk powder, salt, spices, condiments, emulsifying and stabilizing agents, a leavening agent, and flavoring. The net weight of the sample package was 1.5 ounces.

The applicable subheading for these “Peanut Crackers,” 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, if entered after the peanut quota has filled, 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.

In examining the sample accompanying your letter, it was noted that country of origin marking for the peanuts does not appear on either the front or the back of the bag. However, the phrase “Member Snack Food Association, Virginia, U.S.A.,” appears in the lower left corner of the rear of the bag.

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 peanuts, the name and location of the snack Food Association may, in our opinion, be misleading as to the country of origin of these goods. Therefore, assuming the peanuts were harvested in India and, also, processed in that country, the retail bag must be marked as a “Product of India,” 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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