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NY N017011




October 15, 2007

CLA-2-21:OT:RR:NC:N2:228

CATEGORY: CLASSIFICATION

TARIFF NO.: 2106.90.5850

Ms. Mariana Pascaru
OBM International Trade Services
One Breakfast Creek Road
Newstead, QLD 4006
Australia

RE: The tariff classification, status under the United States-Australia Free Trade Agreement (UAFTA), and country of origin marking for diet gelatin dessert mixes from Australia.

Dear Ms. Pascaru:

In your letter dated August 28, 2007, on behalf of Jalco Food & Beverage, Gladesville, NSW, Australia, you requested a ruling on the status of diet gelatin dessert mixes from Australia under the UAFTA.

Additional information was submitted via email on October 9, 2007, and October 11, 2007. Four unmarked samples and drafts of the information that will be printed on the packages were submitted with your letter. Ingredients breakdowns and information were provided with your October correspondence. The samples were examined and disposed of. Simply Sugar Free Gelatin Dessert Mixes (raspberry, port wine, strawberry, and lime-flavored), are products in powder form, put up for retail sale in sealed foil pouches containing 14 grams, net weight. All are composed of gelatin (approximately 49 to 51 percent), inulin (33 to 34 percent), fumaric acid (7 percent), flavor (3 to 7 percent), sodium citrate (3 percent), and less than one percent, each, of aspartame, acesulfame potassium, chromium chloride, maltodextrin, and color. The Port Wine flavor also contains less than one percent erythrosine. The aspartame, erythrosine, and the raspberry, port wine, and strawberry flavor ingredients are products of Australia or the United States. All other ingredients are from non-UAFTA countries. In Australia, the ingredients are blended according to the prescribed formulas and packaged.

The applicable tariff provision for these four dessert mixes will be 2106.90.5850, Harmonized Tariff Schedule of the United States (HTSUS), which provides for food preparations not elsewhere specified or includedother otherof gelatinput up for retail saleother. The general rate of duty will be 4.8 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 such good satisfies all other applicable requirements of this note;

Based on the facts provided, the goods described above qualify for UAFTA preferential treatment, because they will meet the requirements of HTSUS General Note 28(b)(ii)(A) and 28(n)/21.8(F). The goods 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. 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 Tariff Act we find that the dessert mixes are goods of Australia for marking purposes.

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 Stanley Hopard at 646-733-3029.

Sincerely,

Robert B. Swierupski
Director,

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