CLA-2-19:OT:RR:NC:2:231

Ms. Crystal L. Osborne
Alfred H. Marzolf, Inc.
810 Third Avenue, # 236
Seattle, WA 98104

RE: The tariff classification of thickly coated peanuts from China.

Dear Ms. Osborne:

In your undated letter received here on September 15, 2009, you requested a tariff classification ruling on behalf of Acme Food Sales, Inc. (Seattle, WA).

Specifications, flow charts and samples representing four types of “Nibble Time Coated Peanuts” were submitted for our examination. All of the goods are spherical or oval-shaped products consisting of a peanut kernel encased in a two-layered, biscuit-like baked coating made largely of glutinous rice and wheat flour. “Nibble Time Hot & Spicy Coated Peanuts” (Article Code NTCPHS) contain peanuts, glutinous rice, wheat flour, seasoning (chili powder, beef extract, garlic powder, black pepper, flavor enhancer, hydrolyzed vegetable protein, acid, natural chili color, anti-caking agent), palm oil, sugar, salt, antioxidant.

“Nibble Time Tomato Coated Peanuts” (NTCPTO) contain peanuts, glutinous rice, wheat flour, seasoning (tomato powder, maltodextrin, corn starch, vinegar powder, hydrolyzed vegetable protein, acid, anti-caking agent), palm oil, sugar, salt, antioxidant.

“Nibble Time Cheese & Bacon Coated Peanuts” (NTCPCB) contain peanuts, glutinous rice, wheat flour, seasoning (cheese powder, tomato powder, maltodextrin, bacon flavor, natural chili color, hydrolyzed vegetable protein, anti-caking agent), palm oil, salt, sugar, antioxidant.

“Nibble Time Barbecue Coated Peanuts” (NTCPBBQ) contain peanuts, glutinous rice, wheat flour, seasoning (tomato powder, black pepper, chili powder, onion powder, garlic powder), palm oil, sugar, salt, antioxidant.

Examination of the samples of each of the above-described types/flavors indicates that the diameter of the peanut kernel itself is generally less than half the overall diameter of the complete, double-coated article.

The applicable subheading for all of the above-described “Nibble Time Coated Peanuts” will be 1905.90.1090, Harmonized Tariff Schedule of the United States (HTSUS), which provides for bread, pastry, cakes, biscuits and other bakers’ wares …: other: bread, pastry, cakes, biscuits and similar baked products … whether or not containing chocolate, fruit, nuts or confectionery: other: other. The rate of duty will be free.

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/.

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.

We note that the country of origin marking on the submitted samples (cylindrical 35-gram retail canisters) is not acceptable. The side panel of each canister is printed with the phrase “Nibble Time—The Netherlands.” The phrase “Produced in China” appears on a printed sticker affixed to the bottom end of the canister. 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 order to satisfy the close proximity requirement, the country of origin marking must generally appear on the same side(s) or surface(s) in which the name or locality other than the actual country of origin appears.

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 Nathan Rosenstein at 646-733-3030.

Sincerely,

Robert B. Swierupski
Director,
National Commodity Specialist Division