Mr. Jamie Morelan
Flegenheimer International, Inc.
227 W. Grand Avenue
El Segundo, CA 90245
RE: The tariff classification and status under the United States-Australia Free Trade Agreement (UAFTA), of ice-cream novelties from Australia.
Dear Mr. Morelan:
In your letters dated March 13 and March 30, 2007, submitted on behalf of Weis Pty. Ltd., you requested a ruling on the status of certain ice-cream novelty bars from Australia under the UAFTA.
The items in question are ready-to-eat, frozen on-a-stick novelty bars consisting of an ice cream layer on one side and a fruit-flavored ice-confection layer on the other. The goods, offered in four flavors (tropical fruit, mango, raspberry, and mango-macadamia), will be imported in retail boxes containing eight 40-gram bars. Each box will contain bars of a single flavor, or, in the case of the “variety pack,” an assortment of the four flavors. (You have advised that larger bars, weighing 81.5 grams each, may also be imported. They will have the same ingredients, in the same proportions, as described below.)
Information submitted with your inquiry indicates that the ice cream layer will comprise between about 24 percent and 44 percent of the overall weight of an individual bar, depending on the flavor. In all cases, the ice cream layer’s ingredients will be cream, water, sugar, glucose and skim milk powder. The ice cream will have a milk fat content of about 16 percent, and a milk solids content of about 21 percent. (In the mango-macadamia bar only, the ice cream layer will, in addition, contain macadamia nuts, comprising about 12 percent of that layer’s weight.)
The ice-confection layer of the “tropical fruit & cream” bar will contain water, sugar, pineapple, bananas, passionfruit juice, glucose, skim milk powder, citric acid and natural red-beet color.
The ice-confection layer of the “mango & cream” bar will contain mango, water, sugar, glucose, skim milk powder, citric acid, and natural annatto color.
The ice-confection layer of the “raspberries & cream” bar will contain water, raspberries, sugar, full-cream milk, glucose, full-cream milk powder, vegetable gums, and citric acid.
The ice-confection layer of the “mango-macadamia & cream” bar will contain mango, water, sugar, full-cream milk powder, coconut milk powder, glucose, vegetable gums, natural annatto color, natural vanilla and citric acid.
Production of the bars will take place entirely within Australia using the aforementioned ingredients. Most of the ingredients themselves will be of Australian origin, but the following exceptions are noted: The raspberries (frozen whole/crumbled) will originate in Chile, the coconut milk powder will originate in the Philippines, the red beet color will originate in Denmark, and the citric acid will originate in China. During the course of the complex manufacturing process, these non-Australian ingredients will be combined with the other (Australian) ingredients to produce the finished bars.
The applicable tariff provision for all of the above-described ice cream / ice confection bars, if entered under quota, will be 2105.00.3000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for ice cream and other edible ice, whether or not containing cocoa: other: dairy products described in additional U.S. Note 1 to chapter 4: described in additional U.S. Note 10 to chapter 4 and entered pursuant to its provisions. The general rate of duty will be 20% ad valorem.
The applicable tariff provision for all of the above-described ice cream / ice confection bars, if entered outside the quota, will be 2105.00.4000, HTSUS, which provides for ice cream and other edible ice, whether or not containing cocoa: other: dairy products described in additional U.S. Note 1 to chapter 4: other. The general rate of duty will be 50.2 cents per kilogram + 17% 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;
(B) the good otherwise satisfies any applicable regional value content requirement referred to in subdivision (n) of this note; or
(C) the good meets any other requirements specified in subdivision (n) of this note;
and such good satisfies all other applicable requirements of this note;
(iii) the good was produced entirely in the territory of Australia or of the United States, or both, exclusively from materials described in subdivision (b)(i) or (b)(ii) of this note; or
(iv) the good otherwise qualifies as an originating good under 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 goods described above qualify for UAFTA preferential treatment, because they will meet the requirements of HTSUS General Note 28(b)(ii). If properly entered under subheading 2105.00.3000, HTSUS, the goods will therefore be entitled to a free rate of duty under the UAFTA upon compliance with all applicable laws, regulations, and agreements. Alternatively, if entered under subheading 2105.00.4000, HTSUS, the goods will also be entitled to a free rate of duty under the UAFTA, subject to the quantitative limits and export certificate requirements specified in subheading 9913.04.25 and U.S. Note 8 to subchapter XIII of chapter 99, HTSUS, 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/.
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 Nathan Rosenstein at 646-733-3030.
Robert B. Swierupski