The tariff classification, country of origin marking, and status under the United States-Australia Free Trade Agreement (UAFTA), of vegetarian burgers and patties from Australia

N034309 August 28, 2008 CLA-2-21:OT:RR:E:NC:N2:228 CATEGORY: Classification TARIFF NO.: 2004.90.8580, 2106.90.9995 Mr. Saher Dermelkonian Syndian Natural Food Products Unit 9 10-12a Wingate Rd Mulgrave NSW 2155 Australia RE: The tariff classification, country of origin marking, and status under the United States-Australia Free Trade Agreement (UAFTA), of vegetarian burgers and patties from Australia Dear Mr. Dermelkonian: In your letter dated July 25, 2008, you requested a tariff classification ruling and status of vegetarian burgers and patties under the UAFTA. Ingredients breakdowns, country of origin information, and pictures of packaging were submitted with your letter. The products are vegan food preparations, imported in frozen condition, in retail or food service packaging. The “bites”, 120-gram burgers, and 25-30-gram patties, contain no meat, dairy, fish, or animal by-products, and are gluten, soy, and preservative-free. The Lentil Burger/Bites consist of lentils, brown rice, carrot, sesame seeds, sesame seed paste, onion, parsley, canola oil, cumin, coriander seeds, and salt. The Curried Pumpkin Bites contain chickpea, pumpkin, canola oil, curry powder, parsley, salt, garlic, and baking powder. The Falafel Bites/Patties consists of chickpea, fava bean, potato, garlic, parsley, water, cumin, canola oil, salt, and baking powder. The Adzuki Bean and Kumara Burgers are composed of adzuki, kumara (sweet potato), canola oil, coriander seeds, parsley, salt, garlic, and cumin. All of the ingredients are products of Australia with the exception of the lentils from Canada, cumin, and curry powder from India, and the sesame seeds from India or China. The ingredients are blended, formed, cooked, frozen, and packaged in Australia. The applicable subheading for the Curried Pumpkin Bites and the Falafel Patties and Bites will be 2004.90.8580, Harmonized Tariff Schedule of the United States (HTSUS), which provides for other vegetables prepared or preserved otherwise than by vinegar or acetic acid, frozen, other than products of heading 2006…other vegetables and mixtures of vegetables…other…other, including mixtures. The general rate of duty will be 11.2 percent. The applicable subheading for the Lentil Burgers and Bites and the Adzuki Bean and Kumara Burgers will be 2106.90.9995, HTSUS, which provides for food preparations not elsewhere specified or included…other…other…other…frozen. The general rate of duty will be 6.4 percent. 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/. 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 Curried Pumpkin Bites, and the Falafel Bites/Patties described above qualify for UAFTA preferential treatment, because they will meet the requirements of HTSUS General Note 28(b)(ii)(A) and 28(n)/20.1. The goods will therefore be entitled to a 6.7 percent ad valorem rate of duty under the UAFTA upon compliance with all applicable laws, regulations, and agreements. The Lentil Burgers and Bites, and the Adzuki Bean and Kumara Burgers 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. 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 Curried Pumpkin Bites, Falafel Patties and Bites, Lentil Burgers and Bites, and the Adzuki Bean and Kumara Burgers 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. Your inquiry does not provide enough information for us to issue a classification ruling on the The Brown Rice and Vegetable Burgers/Bites. Your request for a classification ruling should include the comparative cost of the Tamari Sauce ingredient relative to the FOB value of the finished product. When this information is available, you may wish to consider resubmission of your request. 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 National Commodity Specialist Division