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NY N015999




September 5, 2007

CLA-2-18:RR:NC:232

CATEGORY: CLASSIFICATION

TARIFF NO.: 1806.90.9090; 2106.90.9998

Ms. Mariana Pascaru
OBM International Trade Services
Level 2, 1 Breakfast Creek Road
Newstead Queensland
40006 Australia

RE: The tariff classification, country of origin marking and status under the United States-Australia Free Trade Agreement (UAFTA), of meal replacement products from Australia.

Dear Ms. Pascaru:

In your letter dated July 18, 2007, on behalf of your client Jalco Food & Beverage of Australia, you requested a ruling on the status of meal replacement products from Australia under the UAFTA.

Chocolate Soy Shake Formula Food and Vanilla Soy Shake Formula Food are described as powdered products that will create flavored beverages when added to water. The Chocolate Soy Shake Formula Food is said to contain soy protein isolate, fructose, maltodextrin, cocoa powder, beverage whitener (milk protein, soy), flavor (wheat), xanthan gum, guar gum, salt, minerals (calcium phosphate, magnesium oxide, ferrous sulphate, zinc oxide and potassium iodide) and vitamins (A, B1, B2, B6, B12, C, D, E, folate and niacin).

Vanilla Soy Shake Formula Food is said to contain soy protein isolate, fructose, maltodextrin, beverage whitener (milk protein, soy), flavor (wheat), xanthan gum, guar gum, salt, minerals (calcium phosphate, magnesium oxide, ferrous sulphate, zinc oxide, and potassium iodide), soy lecithin and vitamins (A, B1, B2, B6, B12, C, D, E, folate and niacin). The soy protein isolate, fructose, flavor (wheat), salt and soy lecithin are products of either Australia or the United States. The beverage whitener is a product of Malaysia, the maltodextrin and guar gum are products of China, the vitamins and minerals are products of Singapore, the iron is a product of Germany, the cocoa powder is a product of Indonesia and the xanthan gum is a product of Austria. In Australia, the ingredients are blended according to the respective recipes, weighed and packed for retail sale in 52-gram packets.

The applicable tariff provision for the chocolate soy shake will be 1806.90.9090, Harmonized Tariff Schedule of the United States (HTSUS), which provides for Chocolate and other food preparations containing cocoa: other: other: other. The general rate of duty will be 6 percent ad valorem.

The applicable tariff provision for the vanilla soy shake will be 2106.90.9998, Harmonized Tariff Schedule of the United States (HTSUS), which provides for food preparations not elsewhere specified or included otherotherother. The general rate of duty will be 6.4 percent ad valorem.

Applying the Marking Rules set forth in section 304 of the regulations, we find that the Chocolate and Vanilla Soy Shakes are both goods of Australia for marking purposes.

General Note 28(b), HTSUS, sets forth the criteria for determining whether a good is originating under the UAFTA. General Note 28(b), HTSUS, (19 U.S.C. § 1202) states, in pertinent part, that

For the purposes of this note, subject to the provisions of subdivisions (c), (d), (m) and (n) thereof, a good imported into the customs territory of the United States is eligible for treatment as an originating good of a UAFTA country under the terms of this note only if –

(i) the good is a good wholly obtained or produced entirely in the territory of Australia or of the United States, or both;

(ii) the good was produced entirely in the territory of Australia or of the United States, or both, and—

(A) each of the nonoriginating materials used in the production of the good undergoes an applicable change in tariff classification specified in subdivision (n) of this note;

(B) the good otherwise satisfies any applicable regional value content requirement referred to in subdivision (n) of this note; or

(C) the good meets any other requirements specified in subdivision (n) of this note;
and such good satisfies all other applicable requirements of this note;

(iii) the good was produced entirely in the territory of Australia or of the United States, or both, exclusively from materials described in subdivision (b)(i) or (b)(ii) of this note; or

(iv) the good otherwise qualifies as an originating good under this note,
and is imported directly into the customs territory of the United States from the territory of Australia.

Based on the facts provided, the Chocolate Soy Shake Formula Food described above qualifies for UAFTA preferential treatment, because they will meet the requirements of HTSUS General Note 28(b)(ii)(A). The goods will therefore be entitled to a 4.2 percent ad valorem rate of duty under the UAFTA upon compliance with all applicable laws, regulations, and agreements.

The Vanilla Soy Shake Formula Food does not qualify for preferential treatment under the UAFTA because the beverage whitener and vitamins do not satisfy the requirements of HTSUS General Note 28(b)(ii)(A) or 28(n)/21.8(F), noting GN 28(e)(ii)(H).

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.

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 Frank Troise at 646-733-3031.

Sincerely,

Robert B. Swierupski
Director,

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