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NY N016001




September 19, 2007

CLA-2-21:RR:NC:2:228

CATEGORY: CLASSIFICATION

TARIFF NO.: 2101.12.9000, 1901.90.4200, 1901.90.4300

Ms. Mariana Pascaru
OBM International Trade Services Pty Ltd
Level 2, 1 Breakfast Creek Road
Newstead Brisbane
Qld 4006 Australia

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

Dear Ms. Pascaru:

In your letters dated July 30, 2007, on behalf of Jalco Food & Beverage, Australia, you requested a tariff classification ruling under the UAFTA.

Lists of ingredients, country of origin information, and samples were submitted with your letter. The samples were examined and disposed of. The products are described as meal replacement shake mixes put up for retail sale in single serving packets containing 52 grams. The Café Latte (1 percent coffee powder), Espresso (3 percent coffee powder), Chocolate (4.7 percent cocoa powder), Vanilla, Strawberry, Wild Berry, and Banana meal replacement shake mixes each contain skim milk powder (68 percent), fructose, calcium caseinate, whey protein concentrate, palm oil, glucose syrup solids, maltodextrin, malt, extract, carrageenan, modified food starch, magnesium oxide, ferrous sulphate, zinc oxide, potassium iodide, artificial flavor, sodium phosphate, sodium pyrophosphate, mono- and diglycerides, sodium caseinate, color, vitamin A acetate, thiamine mononitrate, riboflavin, pyridoxine hydrochloride, cyanaocobalamine, ascorbic acid, cholecalciferol, alpha tocopherol acetate, folic acid, niacinamide, and silicon dioxide. The mixes are combined with 200 ml chilled water to make the shake. The shake can be frozen to make an ice cream like product.

The majority of the ingredients used to make the shakes originate in either the United States or Australia. The exceptions are the beverage whitener from Malaysia, the maltodextrin and disodium phosphate from China, the vitamin and mineral premixes from Singapore, the ferrous sulphate from Germany, the caramel color from Malaysia, the cocoa powder from Indonesia, and the beet root red color from Hungary. In Australia, the ingredients are blended, weighed, and packed for retail sale.

The applicable subheading for the Chocolate, Vanilla, Strawberry, Wild Berry, and Banana meal replacement shake mixes, if imported in quantities that fall within the limits described in additional U.S. note 10 to chapter 4, will be 1901.90.4200, Harmonized Tariff Schedule of the United States, (HTSUS), which provides for food preparations of goods of headings 0401 to 0404, other... dairy products described in additional U.S. note 1 to chapter 4...dairy preparations containing over 10 percent by weight of milk solids...described in additional U.S. note 10 to chapter 4 and entered pursuant to its provisions. The general rate of duty will be 16 percent ad valorem. If the quantitative limits of additional U.S. note 10 to chapter 4 have been reached, these products will be classified in subheading 1901.90.4300, HTS, and dutiable at the rate of $1.035 per kilogram plus 13.6 percent ad valorem.

The applicable subheading for the Café Latte and Espresso flavored shake mixes will be 2101.12.9000, HTSUS, which provides for extracts, essences or concentrates or with a basis of coffeepreparations with a basis of extracts, essences or concentrates or with a basis of coffeeotherother. The rate of duty will be 8.5 percent ad valorem.

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
and is imported directly into the customs territory of the United States from the territory of Australia.

Based on the facts provided, the Café Latte, Espresso, Chocolate, Vanilla, Strawberry, Wild Berry, and Banana flavored meal replacement shake mixes described above, qualify for UAFTA preferential treatment, because they will meet the requirements of HTSUS General Note 28(b)(ii)(A), 28(n)/21.1, and 28(n)/19.3, 28(e)(ii)(H) noted. When entered under subheadings 1901.90.4200 and 2101.12.9000, HTSUS, the goods will be entitled to a free rate of duty under the UAFTA upon compliance with all applicable laws, regulations, and agreements.

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 regulations we find that the Café Latte, Espresso, Chocolate, Vanilla, Strawberry, Wild Berry, and Banana meal replacement shake mixes are goods of Australia for marking purposes.

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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