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NY N018525

October 30, 2007



TARIFF NO.: 2008.99.6000

Mr. Richard Becker
Mariani Packing Company
500 Crocker Drive
Vacaville, CA 95688

RE: The tariff classification and country of origin marking of prepared prunes from Thailand

Dear Mr. Becker:

In your letters dated September 10, 2007 and September 11, 2007 you requested a tariff classification and country of origin marking ruling.

Samples and additional information regarding the manufacturing process were received on October 16, 2007. The samples were examined and disposed of. Mariani Packing Company will export dried plums (prunes), products of the United States, to a processing facility in Thailand. In Thailand, the prunes will be inspected and placed into a plastic or metal foil retail pouch of varying weights. Water is added to the pouch, the pouch is sealed, and pasteurized by placement in a steam oven at 105 degrees Celsius for 19 minutes. After cooling, the bags of prunes are packed into cases for shipment back to the United States. The process in Thailand increases the moisture content of the prunes from 22-24 percent to 36-40 percent, and effectively destroys bacteria, making the imported product shelf stable.

The sample you provided of the finished product is a sealed, metal foil pouch containing 330 grams (11.64 ounces) net weight. The front panel of the pouch identifies the product as Mariani brand “Premium / No Preservative / Pitted Prunes / No Sugar Added / All Natural and Fat Free.” The rear panel is divided into two sections. The left hand section provides general information about the process, advises the consumer to “refrigerate after opening,” and provides a recipe using the prunes. The right hand section bears the “Nutrition Information” box, a statement of the ingredients (“prunes 100%”), and the information “Packed by: Mariani (Thailand) Ltd. Distributed by: Mariani Australia Pty. Ltd. Product of USA.”

In your September 11, 2007 letter you suggested the imported prunes were classified in subheading 9801.00.10, Harmonized Tariff Schedule of the United States (HTSUS), the provision for products of the United States returned after having been exported, without having been advanced in value or improved in condition by any process of manufacture or other means while abroad. We cannot agree. The processing performed in Thailand has advanced the prunes’ value and improved their condition. Classification as returned United States products cannot apply.

The applicable subheading for the imported, retail packed prunes will be 2008.99.6000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for fruitotherwise prepared or preservednot elsewhere specified or includedotherotherplums (including prune plums and sloes). The rate of duty will be 11.2 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 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.

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 retail packed prunes are goods of the United States for marking purposes.

If a good is determined to be an article of U.S. origin, it is not subject to the country of origin marking requirements of 19 U.S.C. §1304. Whether an article may be marked with the phrase "Made in the USA" or similar words denoting U.S. origin, is an issue under the authority of the Federal Trade Commission (FTC). We suggest that you contact the FTC Division of Enforcement, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580 on the propriety of proposed markings indicating that an article is made in the U.S.

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.

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.


Robert B. Swierupski

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