CLA-2:CO:R:C:G 083352 SER
Mr. Jack Sollazzo
Ingredient Resources Inc.
160 Eileen Way
Syosset, NY 11791
RE: Peanut Butter powder
Dear Mr. Sollazzo:
This is in reference to your letter of September 9, 1988,
requesting a tariff classification under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA), of a peanut
butter powder from Canada.
FACTS:
The merchandise at issue is an oily, tan, granular material
with non-uniform particle size. It is said to be composed of 90
percent roasted peanuts, 7 percent dextrose, 2 percent salt, and
1 percent fructose. The product is produced by grinding the
ingredients into granulated form. The oil from the peanut has
not been extracted, and the product has not been dried. The
imported product's stated use is as a food topping for baked
goods or ice cream, as a filling or flavoring for cookies, cakes,
candy bars and other similar uses.
ISSUE:
What is the proper classification of the peanut butter
powder from Canada under the HTSUSA?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRI), taken in order. GRI 1
provides that classification shall be determined according to the
terms of the headings and any relative Section or Chapter Notes.
There are several competing provisions under which this
product can be classified: heading 1208, HTSUSA, provides for
flours and meals of oil seeds or oleaginous fruits; heading 1901,
HTSUSA, provides for food preparations of flour, meal, starch or
-2-
malt extract; and heading 2008, HTSUSA, which provides for
fruits, nuts, and edible parts of plants, otherwise prepared or
preserved.
The Explanatory Notes constitute the official interpretation
of the tariff at the international level. The Explanatory Notes
to heading 1208, HTSUSA, limit this heading to non-defatted,
partially defatted, or partially refatted flour and meals of the
products covered by the headings of this Chapter. Peanuts
(ground nuts) are provided for in heading 1202, HTSUSA. However,
the Explanatory Notes stress the fact that roasted peanuts are
excluded from this heading and fall in Chapter 20. The
merchandise at issue is prepared from roasted peanuts, which are
its primary ingredient. Since the primary ingredient is
excluded from heading 1202, HTSUSA, the ground product cannot be
classified in heading 1208, HTSUSA. This is supported by the
Explanatory Notes' exclusion of peanut butter (a product also
prepared by grinding roasted peanuts) from Chapter 12, directing
such classification to Chapter 20.
Heading 1901, HTSUSA, provides for food preparations of
flour, meal, starch or malt extract, not elsewhere specified or
included. The main issue to be addressed here is whether the
instant product is a preparation of "flour" or "meal".
Under standards set forth in the HTSUSA Explanatory Notes
and by utilizing industry standards, it would appear that the
merchandise at issue is not a preparation of flour or meal.
Since Chapter 19 does not set specific standards of what
constitutes flour or meal, Customs has adopted the standards of
Chapter 11, HTSUSA. The standard sets forth parameters which
limit the particle size of a product to determine if it can be
labeled a flour or meal. Under the standard, the product at
issue can not be labeled a flour or meal. In addition, the
National Import Specialist at the New York branch of Customs,
determined after talking with individuals in the industry that
the product at issue would not be labeled a flour or meal by
general industry standards.
Heading 2008, HTSUSA, provides for nuts and other edible
parts of plants, otherwise prepared or preserved, whether or not
containing added sugar or other sweetening matter, not elsewhere
specified or included. The Explanatory Notes to this heading
include peanut butter, a ground peanut product, as is the product
at issue.
HOLDING:
The merchandise at issue is classifiable, under GRI 1, under
-3-
subheading 2008.11.0060, HTSUSA, which provides for fruit, nuts
and other edible parts of plants, otherwise prepared or
preserved: peanuts, other. The rate of duty, if this merchandise
is considered "goods originating in the territory of Canada", is
5.9 cents/kg under the special duty rate column. Otherwise the
rate of duty is 6.6 cents/kg. In addition, the merchandise is
subject to quota limitation of 775,189 kilograms set forth in
subheading 9904.20.20, HTSUSA.
Sincerely,
John Durant, Director
Commercial Rulings Division