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NY N023122




February 21, 2008

CLA-2-20:OT:RR:E:NC:N2:228

CATEGORY: CLASSIFICATION

TARIFF NO.: 2003.10.0131; 2003.10.0147

Mr. Tom Gillette
Tropics Finest, LLC
1835 East Hallandale Beach
Hallandale Beach, FL 33009

RE: The tariff classification and country of origin marking of processed mushrooms from Panama, Colombia, Costa Rica, Honduras, and the Grand Bahama Island

Dear Mr. Gillette:

In your letter dated February 11, 2008 you requested a tariff classification and country of origin marking ruling.

Whole mushrooms, of the genus Agaricus, will be imported into your processing facilities located in Panama, Colombia, Costa Rica, Honduras, and the Grand Bahama Island. The mushrooms, imported in fresh or provisionally preserved condition, are grown in China, Chile, Indonesia, or India. At your processing plants the mushrooms will be sliced and placed into a new brine, composed of either water, salt, and calcium disodium EDTA, or consisting of water, vinegar, salt, ascorbic acid, canola oil, sugar, garlic, spices, and sodium bisulfite. The brined mushrooms will then be bottled or canned, cooked, and exported to the United States.

The applicable subheading for the sliced mushrooms in a brine of water, salt, and calcium disodium EDTA, when in containers holding 255 grams or less, will be 2003.10.0131, Harmonized Tariff Schedule of the United States (HTSUS), which provides for mushroomsprepared or preserved otherwise than by vinegar or acetic acidmushrooms of the genus Agaricusin containers each holding not more than 255 gsliced. When in containers holding more than 255 grams, the applicable subheading for these mushrooms will 2003.10.0147, HTSUS. The rate of duty, in both cases, will be 6 cents per kilogram on the drained weight plus 8.5 percent ad valorem.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.

The merchandise in question may be subject to antidumping duties or countervailing duties. Written decisions regarding the scope of AD/CVD orders are issued by the Import Administration in the Department of Commerce and are separate from tariff classification and origin rulings issued by Customs and Border Protection. You can contact them at http://www.trade.gov/ia/ (click on “Contact Us”). For your information, you can view a list of current AD/CVD cases at the United States International Trade Commission website at http://www.usitc.gov (click on “Antidumping and countervailing duty investigations”), and you can search AD/CVD deposit and liquidation messages using the AD/CVD Search tool at http://www.cbp.gov (click on “Import” and “AD/CVD”).

This merchandise is subject to The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (The Bioterrorism Act), which is regulated by the Food and Drug Administration (FDA). Information on the Bioterrorism Act can be obtained by calling FDA at 301-575-0156, or at the Web site www.fda.gov/oc/bioterrorism/bioact.html.

Your inquiry does not provide enough information for us to give a classification ruling on the processed mushrooms in a brine consisting of water, vinegar, salt, ascorbic acid, canola oil, sugar, garlic, spices, and sodium bisulfite. Your request for a classification ruling should include a sample of these mushrooms, for laboratory analysis. When this information is available, you may wish to consider resubmission of your request. If you decide to resubmit your request, please include all of the material that we have returned to you.

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. For example, it is suggested that the country of origin on metal articles be die sunk, molded in, or etched. However, 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.

Section 1907 of the Omnibus Trade and Competitiveness Act of 1988, Pub. L. No. 100-418, established specific marking requirements for preserved mushrooms. Section 1907(b) provides:

MARKING OF CONTAINERS OF IMPORTED MUSHROOMS - Imported preserved mushrooms shall not be considered to be in compliance with section 304 of the Tariff Act of 1930 (19 U.S.C. 1304) or any other law relating to the marking of imported articles unless the containers therof indicate in English the country in which the mushrooms were grown.

The effect of section 1907 of the 1988 Trade Act is to specify that irrespective of further processing, the country where mushrooms are grown is the country of origin for purposes of 19 U.S.C. 1304.

Applying the Marking Rules set forth in section 304 of the Tariff Act of 1930, as amended and section 134 of the Customs Regulations, we find that the processed mushrooms described above are goods of China, Chile, Indonesia, or India for marking purposes.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 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 Stanley Hopard at 646-733-3029.

Sincerely,

Robert B. Swierupski
Director,

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