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NY N016004




September 7, 2007

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

CATEGORY: CLASSIFICATION

TARIFF NO.: 2104.10.0020

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 dried soup preparations from Australia.

Dear Ms. Pascaru:

In your letters dated July 16, 2007 and July 30, 2007, on behalf of Jalco Food & Beverage, Australia, you requested a tariff classification ruling under the UAFTA.

Lists of ingredients accompanied your first letter. Country of origin information and samples were submitted with your second letter. The samples were examined and disposed of. The products are described as meal replacement soups put up for retail sale in single serving packets. The powdered chicken flavored and tomato flavored soups each contain milk solids, maltodextrin, thickeners, glucose syrup solids, flavor enhancers, salt, milk minerals, emulsifiers, vitamins, and silicon dioxide. The chicken flavor also contains vegetable fat, chicken flavor, food acid, vegetable powder, dehydrated chicken, animal fat, spice extract, potassium chloride, and color. The tomato flavor also contains tomato powder, palm oil, onion powder, yeast extract, artificial tomato flavor, ground coriander, parmesan cheese powder, garlic powder, dill, basil, and parsley. The dried mixes are combined with boiling water to make the soups.

All but thirteen ingredients used to make the soups originate in either the United States or Australia. The non-originating ingredients are products of Spain, China, Malaysia, Thailand, Indonesia, Austria, Singapore, Germany, China, Israel, Turkey, Egypt, Hungary, China, Indonesia, India, United Kingdom, Poland, South Korea, and France. In Australia, the ingredients of the chicken flavored and tomato flavored soups are blended, weighed, and packed for retail sale in 54 gram sachets.

The applicable tariff provision for the dried Chicken Flavored Meal Replacement Soup and Tomato Flavored Meal Replacement Soup will be 2104.10.0020, Harmonized Tariff Schedule of the United States (HTSUS), which provides for soups and broths and preparations therefor,.dried. The general rate of duty will be 3.2 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 Chicken Flavored Meal Replacement Soup and the Tomato Flavored Meal Replacement Soup do not qualify for preferential treatment under the UAFTA because the beverage whitener ingredient contained in both products, and the yeast extract ingredient contained in the Tomato Flavored Meal Replacement Soup 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/.

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 Chicken Flavored Meal Replacement Soup and the Tomato Flavored Meal Replacement Soup 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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