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NY N016002




November 20, 2007

CLA-2-19:OT:RR:NC:2:228

CATEGORY: CLASSIFICATION

TARIFF NO.: 1901.90.9095

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 a fiber supplement from Australia.

Dear Ms. Pascaru:

In your letters dated July 9, 2007 and July 30, 2007, on behalf of Jalco Food & Beverage, Australia, you requested a tariff classification ruling under the UAFTA.

A list of ingredients and an image of the Australian product label accompanied your first letter. Country of origin information, a sample of the product, and prototype samples of the United States container labels were submitted with your second letter. The sample was forwarded to the Customs and Border Protection laboratory for analysis. Simply Fibre - Dietary Fibre Complex, a brown colored granular material, is described as a dietary fiber supplement composed of psyllium husk, slippery elm, oat bran, rice bran, and red clover. Laboratory analysis found 97.3 percent of the product passes through a sieve with an aperture measuring 1.25 mm. The slippery elm is of United States origin and the oat bran and rice bran are from Australia. The psyllium husk is from India and the red clover is from China. In Australia, the ingredients are blended, weighed, and packed for retail sale in plastic jars containing 280 and 500 grams, net weight. The consumer is directed to add two teaspoons of Simply Fiber to cereal or to dissolve it in a beverage.

The applicable tariff provision for the Simply Fibre - Dietary Fibre Complex will be 1901.90.9095, Harmonized Tariff Schedule of the United States (HTSUS), which provides for food preparations of flour, groats, meal, starch or malt extract, not containing cocoa, not elsewhere specified or includedother otherother. The general rate of duty will be 6.4 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 non-originating 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 Simply Fibre - Dietary Fibre Complex described above qualifies for preferential treatment under the UAFTA because it will meet the requirements of HTSUS General Note 28(b)(ii)(A) and 28(n)/19.3. The item will therefore 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 Simply Fiber - Dietary Fibre Complex is a good of Australia for marking purposes. The samples of the U.S. product labels are clearly, conspicuously, and permanently marked “made in Australia,” in satisfaction of the marking requirements of 19 U.S.C. 1304 and 19 CFR 134.

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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