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April 15, 1999

CLA-2-04:RR:NC:2:231 D87516

CATEGORY: CLASSIFICATION

TARIFF NO.: 0402.91.1000; 0402.91.7000

Mr. Manuel Velez
M & M Associates
#1175 Ferrara Str.
Urb. Villa Capri
Rio Piedras, PR 00926

RE: The tariff classification of evaporated milk from the Dominican Republic.

Dear Mr. Velez:

In your letter, which is undated and received in this office on January 29, 1999, you have requested a tariff classification ruling on behalf of your clients, Borden Puerto Rico, San Juan, PR, Happy Products, Inc., Saint Just, PR, and Mercalia, S.A., Santo Domingo, Dominican Republic.

The product is canned evaporated milk. The ingredients are whole milk powder, water, vitamin D, disodium phosphate, and carrageenan. In your correspondence you indicate that the product contains, by weight, 73.6-74.0 percent moisture, 25.5-26.5 percent solids, 9.0 percent lactose, 7.9-8.0 percent fat, 6.0 percent protein, and 1.3 percent ash. The pH is 6.0. The net weight is 12 fluid ounces. There are 24 cans per box.

During the manufacturing process, purified water is added to whole milk powder. Then it is fortified with vitamin D. Stabilized and emulsifier are added (disodium phosphate and carrageenan), the product undergoes homogenization, and it is canned. The product is sterilized during the canning process.

We note that based on the submitted specifications, the product meets the FDA's Standards of Identity for evaporated milk regarding the percentage, by weight, of milk fat, milk solids not fat, and total milk solids [articulated in 21 CFR 131.130 (a)].

The applicable subheading for canned evaporated milk, if imported in quantities that fall within the limits described in additional U.S. note 11 to chapter 4, will be 0402.91.1000, Harmonized Tariff Schedule of the United States (HTS), which provides for milk and cream, concentrated or containing added sugar or other sweetening matter, other, not containing added sugar or other sweetening matter, described in additional U.S. note 11 to chapter 4 and entered pursuant to its provisions, in airtight containers. The rate of duty will be 2.2 cents per kilogram. If the quantitative limits of additional U.S. note 11 to chapter 4 have been reached, the product will be classified in subheading 0402.91.7000, HTS, and will be dutiable at 32.2 cents per kilogram. In addition, products classified in subheading 0402.91.7000, HTS, will be subject to additional duties based on their value, as described in subheadings 9904.05.02 - 9904.05.19, HTS.

You express an interest in whether preferential duty treatment is available for your product under the applicable tariff subheadings and, also, whether your products meet the eligibility requirements for such preferential treatment as products of countries designated as beneficiary countries for purposes of the Caribbean Basin Economic Recovery Act (CBERA).

In response to your first question, tariff subheadings which are designated under the CBERA show the letter "E" in the Special Rates of Duty column in the tariff schedule. Subheading 0402.91.1000, HTSUSA, has been designated as an eligible subheading for purposes of the CBERA. Subheading 0402.91.7000, HTSUSA, has not been designated as an eligible subheading for purposes of the CBERA.

With regard to the eligibility of the instant evaporated milk under the CBERA when entered under subheading 0402.91.1000, this office does not issue rulings on product eligibility under that program. If you wish to obtain such a ruling, you may write to the Office of Regulations and Rulings at the following address:

U.S. Customs Service
Office of Regulations and Rulings
ATT: Special Classification and Marking Branch 1300 Pennsylvania Avenue, NW, 3rd floor
Washington, DC 20229

Your request for an eligibility determination under the CBERA should include the following:
a) a complete description of the manufacturing process b) a listing of all ingredients showing the percentage by weight of each ingredient, the country of origin for each ingredient, and the cost of each ingredient in the product at the time it is ready to be combined with other product ingredients in the manufacturing process c) the direct cost of manufacturing the product at your factory

A copy of General Note 7, HTSUSA, has been forwarded to you for your guidance in preparing your request. If you have any questions as to what information is required, the Special Classification and Marking Branch may be reached at (202) 927-2310.

Importations of this product are subject to import regulations administered by various U.S. agencies. Information regarding applicable regulations administered by the U.S. Department of Agriculture may be addressed to that agency at the following location:

U.S. Department of Agriculture A.P.H.I.S. Veterinary Services Federal Building, Room 758
6505 Belcrest Road
Hyattsville, MD 20782
Att: Dr. John Blackwell

Information regarding applicable regulations administered by the U.S. Food and Drug Administration may be addressed to that agency at the following location:

U.S. Food and Drug Administration
Division of Regulatory Guidance
HFF 314, 200 C Street, S.W.
Washington, DC 20204

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR 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 Thomas Brady at (212) 637-7064.

Sincerely,

Robert B. Swierupski
Director

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