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NY N016628

September 20, 2007



TARIFF NO.: 2106.90.9998

Ms. Mariana Pascaru
OBM International Trade Services
One Breakfast Creek Road
Newstead, Queensland 4051

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

Dear Ms. Pascaru:

In your letter dated September 3, 2007, on behalf of New Products Development, Eagle Farm, QLD, Australia, you requested a ruling on the status of two dietary supplements from Australia under the UAFTA.

Ingredients breakdowns and images of the retail package labels were submitted with your letter. The products are human dietary supplements, in tablet form, packed for retail sale in plastic jars containing 60 tablets. Simply Chromium and Vitamin C Supplement is said to be composed of Vitamin C, chromium, cinnamon cassia stem bark extract, calcium phosphate, microcrystalline cellulose, silica-colloidal anhydrous, magnesium stearate, sodium starch glycolate, carnauba wax, hydroxypropylmethylcellulose, titanium dioxide, and polyethylene glycol. Simply Balanced Multivitamin Mineral Complex Supplement is said to be composed of Vitamins A, C, D, E, K, B1, B2, B3, B6, B12, folic acid, biotin, pantothenic acid, iron, iodine, magnesium, zinc, selenium, copper, chromium, potassium, glutamine, phenylalanine, citrus bioflavonoid extract, calcium phosphate, microcrystalline cellulose, hydroxypropylmethylcellulose, polyvinylpyrrolidone, silica colloidal anhydrous, magnesium stearate, polyvinyl alcohol, titanium dioxide, talc, polyethylene glycol, soy lecithin, color, and carnauba wax.

The majority of ingredients in each product originate in countries other than Australia or the United States. In Australia, all ingredients are blended, compressed into tablets, coated, polished, and packaged.

The applicable tariff provision for these two dietary supplements will be 2106.90.9998, Harmonized Tariff Schedule of the United States (HTSUS), which provides for food preparations not elsewhere specified or includedotherother other. 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 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 Simply Chromium and Vitamin C Supplement described above qualifies for UAFTA preferential treatment, because it will meet the requirements of HTSUS General Note 28(b)(ii)(A) and 28(n)/21(F). This product will therefore be entitled to a free rate of duty under the UAFTA upon compliance with all applicable laws, regulations, and agreements

The Simply Balanced Multivitamin Mineral Complex Supplement does not qualify for preferential treatment under the UAFTA because two of its non-originating ingredients, betacarotene 10% CWS and citrus bioflavonoid extract, do not meet the requirements of General Note 28(b)(ii)(A), noting General Note 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. 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 Chromium and Vitamin C Supplement and the Simply Balanced Multivitamin Mineral Complex Supplement are goods of Australia for marking purposes. The proposed marking of these products, as indicated in the images of the package labels, is conspicuous, legible, and permanent, in satisfaction of the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134. It is an acceptable country of origin marking.

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.

Should you wish to request an administrative review of this ruling, submit a copy of this ruling and all relevant facts and arguments within 30 days of the date of this letter, to the Director, Commercial Rulings Division, Headquarters, U.S. Customs and Border Protection, 1300 Pennsylvania Ave. N.W., (Mint Annex), Washington, D.C. 20229.


Robert B. Swierupski

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