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NY N004053





December 22, 2006

CLA-2-18:RR:NC:N2:228

CATEGORY: CLASSIFICATION

TARIFF NO.: 1806.90.5500; 1806.90.5900; 2106.90.9500; 2106.90.9700

Mr. David While
Anglo-Irish Trading Co. Pty. Ltd.
P.O. Box 990 Brookvale
NSW 2100 Australia

RE: The tariff classification and status under the United States-Australia Free Trade Agreement (UAFTA), of drink mixes from Australia.

Dear Mr. While:

In your letter dated November 21, 2006 you requested a ruling on the status of drink mixes from Australia under the UAFTA. Your letter was received by this office on December 5, 2006.

Samples and ingredients breakdowns accompanied your letter. Except as noted below, the samples were examined and disposed of. The drink mixes fall into three categories – While’s SHOTS Chocolate Drinks, While’s Milk Shakes, and While’s Thick Shakes. All are powdered products that will create a flavored beverage when added to a liquid (milk or water for the SHOTS; milk, skim milk, or soy milk for the Milk Shakes and Thick Shakes). The SHOTS mixes, chocolate, Irish cream, and coffee liqueur flavor, all contain 41 percent whey and nonfat milk solids, 35.65 percent sugar, 22.5 percent cocoa powder, and unspecified amounts of salt and acesulfame K. The Irish cream and coffee liqueur varieties also contain approximately one percent flavoring. The Milk Shakes, chocolate and strawberry flavor, contain sugar (57.5 percent in the strawberry, 55 percent in the chocolate), 20 percent dextrose, maltodextrin (21 percent for strawberry, 17 percent for chocolate), and flavoring and coloring (1.5 percent for strawberry, 5 percent for chocolate). The chocolate flavor contains 4 percent cocoa solids. In addition, the chocolate Milk Shake contains one percent each of xanthan gum, guar gum, and collagen gum. The Thick Shakes, chocolate, banana, vanilla, caramel malt, mocha chino, caffe latte, and raspberry flavor, all contain 54 percent sugar, 20 percent dextrose, 17 percent maltodextrin, 4.5 percent flavoring and coloring, and 1.5 percent, each, of xanthan gum, collagen gum, and guar gum. The chocolate variety contains 4 percent cocoa solids.

The sugar, whey, nonfat milk solids, and salt are products of Australia, dextrose and maltodextrin are products of China, xanthan gum and acesulfame K are products of the United States, collagen gum is a product of Japan, guar gum is a product of Pakistan, and the flavoring and color, including the cocoa powder, are products of an unnamed country in “Europe.” In Australia, the ingredients are blended according to their respective recipes and packed for retail sale. The SHOTS and Milk Shakes in canisters holding 200 and 285 grams, net weight, respectively, and the Thick Shakes in foil pouches holding 35 grams, net weight, four pouches in a cardboard container.

The applicable tariff provision for the chocolate-flavored Milk Shake and chocolate-flavored Thick Shake, when imported in quantities that fall within the limits described in additional U.S. note 8 to chapter 17, will be 1806.90.5500, Harmonized Tariff Schedule of the United States (HTSUS), which provides for chocolate and other food preparations containing cocoaotherotherother articles containing over 10 percent by dry weight of sugar described in additional U.S. note 3 to chapter 17described in additional U.S. note 8 to chapter 17 and entered pursuant to its provisions. The rate of duty will be 3.5 percent ad valorem. If the quantitative limits of additional U.S. note 8 to chapter 17 have been reached, these products will be classified in subheading 1806.90.5900, HTS, and dutiable at the rate of 37.2 cents per kilogram plus 6 percent ad valorem.

The applicable tariff provision for the strawberry-flavored Milk Shake and the strawberry, banana, vanilla, caramel malt, mocha chino, caffe latte, and raspberry-flavored Thick Shakes, when imported in quantities that fall within the limits described in additional U.S. note 8 to chapter 17, will be 2106.90.9500, HTSUS, which provides for food preparations not elsewhere specified or includedotherother articles containing over 10 percent by dry weight of sugar described in additional U.S. note 3 to chapter 17 described in additional U.S. note 8 to chapter 17 and entered pursuant to its provisions. The rate of duty will be 10 percent ad valorem. If the quantitative limits of additional U.S. note 8 to chapter 17 have been reached, these products will be classified in subheading 2106.90.9700, HTS, and dutiable at the rate of 28.8 cents per kilogram plus 8.5 percent ad valorem.

Articles classified in subheadings 1806.90.5500, 1806.90.5900, 2106.90.9500, and 2106.90.9700, HTS, are not eligible for the preferential duties of the United States-Australia Free Trade Implementation Act.

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/. Your inquiry does not provide enough information for us to give a classification ruling on the SHOTS Chocolate Drinks. Your request for a classification ruling should include a more complete ingredients breakdown. Specifically, provide separate percentages for the whey and non fat milk solids ingredients. The samples of the SHOTS products will be retained for thirty (30) days, pending receipt of this information. 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.

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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