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HQ 962944




February 8, 2000

CLA-2 RR:CR:GC 962944K

CATEGORY: CLASSIFICATION

TARIFF NO.: 0401.20.2000; 0401.20.4000

Mr. Richard Powley
Jade International, Inc.
102 Georgetown Building
Folcroft, PA 19032

RE: New York Ruling Letter (NYRL) D85377; Fibre Lite Reduced Fat Milk

Dear Mr. Powley:

In response to you request of December 7, 1998, on behalf of Australian American Connections, Inc., Customs issued NYRL D85377, dated May 14, 1999, which classified three milk products, under the Harmonized Tariff Schedule of the United States (HTSUS). The classification question concerning the fourth product, Fibre Lite Reduced Fat Milk, was referred to Customs Headquarters for a direct response. Our decision concerning the classification of this product follows.

FACTS:

Liddells’ Fibre Lite Reduced Fat Milk has a fat content of 1.2%. The essential ingredients are reduced fat milk, skim milk powder, dietary fiber, and vitamins (A and D). The sample carton indicates that the fibre used is a natural soluble dietary fiber sourced from vegetables.

ISSUE:

Whether the addition of a small amount of dietary fiber to milk precludes classification as milk in Chapter 4, HTSUS.

LAW AND ANALYSIS:

The classification of imported merchandise under the HTSUS is governed by the principles set forth in the General Rules of Interpretation (GRI). GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section and chapter notes and, unless otherwise required, according to the remaining GRI’s, taken in their appropriate order. Accordingly, we first have to determine whether the articles are classified under GRI 1.

Heading 0401, HTSUS, provides for milk and cream, not concentrated nor containing added sugar or other sweetening matter. Subheading 0401.20.2000, HTSUS, provides for milk and cream, not concentrated nor containing added sugar or other sweetening matter, of a fat content by weight exceeding 1 percent but not exceeding 6 percent, for not over 11,356, 236 liters entered in any calendar year, with a 2000 general rate of duty of 0.43¢ per liter. If the quantitative limitation has been reached, the milk and cream is classified in subheading 0401.20.4000, HTSUS, an over the tariff rate quota provision, with a general rate of duty of 1.5¢ per liter.

Note 1, Chapter 4, HTSUS, defines the expression “milk” as meaning full cream milk or partially or completely skimmed milk.

The Explanatory Notes (EN's) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and General Rules of Interpretation of the HTSUS. The EN’s for heading 0401 state as follows:

This heading covers milk (as defined in Note 1 to this Chapter) and cream, whether or not pasteurised, sterilised or otherwise preserved, homogenised or peptonised; but it excludes milk and cream which have been concentrated or which contain added sugar or other sweetening matter (heading 04.02) and curdled, fermented or acidified milk and cream (heading 04.03).

The products of this heading may be frozen and may contain the additives referred to in the General Explanatory Note to this Chapter. The heading also covers reconstituted milk and cream having the same qualitative and quantitative composition as the natural products.

The “General” notes, Chapter 4, of the EN’s, further states as follows:

The products mentioned at Items (A) to (E) above (which includes milk and cream) may contain, in addition to natural milk constituents (e.g., milk enriched in vitamins or mineral salts), small quantities of stabilising agents which serve to maintain the natural consistency of the product during transport in liquid state (disodium phosphate, trisodium citrate and calcium chloride, for instance) as well as very small quantities of anti-oxidants or of vitamins not normally found in the product. Certain of these products may also contain small quantities of chemicals (e.g., sodium bicarbonate) necessary for their processing; products in the form of powder or granules may contain anticaking agents (for example, phospholipids, amorphous silicon dioxide).

The product meets the definition for milk, contains permissible enriched vitamins, is not concentrated, and does not contain added sugar or other sweetening matter. The sample carton refers to the product as high in fibre, and the nutritional information lists the dietary fibre with the vitamins as added ingredients. We conclude that the addition of dietary fibre enriches the milk in the same manner as the permissible addition of vitamins to enrich the milk, and that the addition of the fibre does not preclude classification in subheadings 0401.20.20/40, HTSUS. Accordingly, the product described as Fibre Lite Reduced Fat Milk is classified in these subheadings by virtue of GRI 1.

HOLDING:

The product described as Fibre Lite Reduced Fat Milk, is classified by virtue of GRI 1, in subheading 0401.20.2000, HTSUS, that provides for milk and cream, not concentrated nor containing added sugar or other sweetening matter, of a fat content by weight exceeding 1 percent but not exceeding 6 percent, for not over 11,356, 236 liters entered in any calendar year. If the quantitative limitation has been reached, the milk and cream is classified in subheading 0401.20.4000, HTSUS, an over the tariff rate quota provision.

Importations of milk and milk products are subject to import regulations administered by various U.S. agencies.

Requests for information regarding applicable regulations administered by the U.S. Food and Drug Administration may be addressed to the U.S. Food and Drug Administration, Division of Regulatory Guidance, HFF 314, 200 C Street, S.W., Washington, D.C 20204.

Requests for information regarding applicable regulations administered by the U.S. Department of Agriculture may be addressed to the A.P.H.I.S., Veterinary Services, Federal Building, Room 756, 6505 Belcrest Road, Hyattsville, MD 20782.

Sincerely,

John Durant, Director

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