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HQ 964777

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July 8, 2002

CLA-2 RR:CR:GC 964777ptl

CATEGORY: CLASSIFICATION

TARIFF NO.: 0401.30.0500/0401.30.2500

Ms. Lara Austrins
Rodriguez, O'Donnell, Fuerst, Gonzalez & Williams 20 North Wacker Drive
Suite 1416
Chicago, IL 60606

RE: Puck Cream Pure and Natural; Modification of NY E83139

Dear Ms. Austrins:

This is in response to your letters of January 4, 2001 and April 24, 2002, on behalf of Ziyad Brothers Importing, requesting reconsideration of NY E83139, dated June 25, 1999, insofar as it related to the classification of Puck Cream Pure and Natural, under the Harmonized Tariff Schedule of the United States (HTSUS). NY E83139 was issued to Schmidt, Pritchard and Company, Inc., on behalf of both Ziyad Brothers and MD Foods, USA, Inc., and classified three products. The classification of the other two products has not been questioned and is not affected by this ruling. A copy of this ruling is being provided to Schmidt, Pritchard and Company.

Pursuant to section 625(c), Tariff Act of 1930, as amended (19 U.S.C. 1625(c)), notice of the proposed modification of NY E83139 was published on May 29, 2002, in the Customs Bulletin, Volume 36, Number 22. No comments were received.

FACTS:

Puck Cream Pure and Natural is described as plain flavored Danish cream. It contains fresh cream from cow's milk, butterfat (minimum 23 percent), vegetable thickeners (soybean oil, sodium alginate, and locust bean gum), and salt. The product is solely preserved by sterilization. It is packed in cylindrical tins (with snap tops) that measure 2 15/16 inches in diameter and 2 inches in height. The net weight is 6 ounces.

In your request for reconsideration, you point out that the Puck Cream Pure and Natural does not contain any added sugar or other sweetening matter. Because of this, you state that the Puck Cream Pure and Natural should not be classified in subheading 0402.99.7000 or 0402.99.9000, HTSUS, but rather should be classified in subheading 0402.91.1000 or 0402.91.7000, HTSUS, depending on whether it is entered under quota or not.

We have reviewed your letter and agree that the classification provided for Puck Cream Pure and Natural in NY E 83139 is incorrect. However, for the reasons stated below, we do not agree that the product is classified in the subheading you have suggested. As discussed below, the correct classification of Puck Cream Pure and Natural is subheading 0401.30.0500, HTSUS, or 0401.30.2500, HTSUS, depending on whether the product is imported within the quota.

ISSUE:

What is the classification of Puck Cream Pure and Natural?

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that virtually all goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied in order.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

0401 Milk and cream, not concentrated nor containing added sugar or other sweetening matter:

0401.30 Of a fat content, by weight, exceeding 6 percent: Of a fat content, by weight, not exceeding 45 per-cent:

0401.30.0500 Described in additional U.S. note 5 to this chapter and entered pursuant to its provisions

0401.30.2500 Other 1/
(1/ See Subheadings 9904.04.01 – 9904.04.08)

0402 Milk and cream, concentrated or containing added sugar or other sweetening matter:

Other

0402.91 Not containing added sugar or other sweetening matter:

Described in additional U.S. note 11 to this chapter and entered pursuant to its provisions:

0402.91.1000 In airtight containers

Other

0402.91.7000 In airtight containers 1/
(1/ See subheadings 9904.05.02 – 9904.05.19)

0402.99 Other:

Other:

0402.99.7000 Described in additional U.S. note 10 to this chapter and entered pursuant to its provisions

0402.99.9000 Other 2/
(2/ See subheadings 9904.04.50 – 9904.05.01)

The classification of Puck Cream Pure and Natural, an all-liquid cream, will be under GRI 1, with consideration given to the direction provided in the EN to heading 0401.

The EN to heading 04.01 states:

This heading covers milk (as defined in Note 1 to this Chapter) and cream, whether or not pasteurized, sterilized 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 EN to heading 04.02 states:

This heading covers milk (as defined in Note 1 to this Chapter) and cream, concentrated (for example, evaporated) or containing added sugar or other sweetening matter, whether liquid, paste or solid (in blocks, powder or granules) and whether or not preserved or reconstituted.

Heading 0401 provides for all liquid cream which is not concentrated or which does not contain added sugar or other sweetening matter. Heading 0402 provides for cream that is concentrated (for example evaporated) or which contains added sugar or other sweetening matter.

In rulings on a variety of cream products, Customs has held that cream that is neither concentrated, nor sweetened, and that has a fat content exceeding 6 percent by weight, but not exceeding 45 percent, is classifiable in subheading 0401.30.0500, if entered under quota, or 0401.30.2500, if entered outside the quota.

In NY 813695, dated August 30, 1995, "Balade Low Fat Whipping Cream" is cream containing butterfat (20 percent minimum), non-fat milk solids (8 percent), and carrageen (0.015 percent) was classified in subheadings 0401.30.0500/0401.30.2500, HTSUS.

In NY C81266, dated October 31, 1997, "Danish Dairy Cream" composed of 99 percent pasteurized cow's cream and one percent vegetable thickening agents E471 (monoglycerides and diglycerides of edible fatty acids), E403 (sodium alginate), and E410 (locust bean gum) was classified in subheadings 0401.30.0500/0401.30.2500, HTSUS.

In NY C82114, dated December 8 1997, "Elle and Vire Special Cream for Fast Sauces – 20 Percent" was classified in subheadings 0401.30.0500/0401.30.2500, HTSUS. The "20 Percent" indicated the fat content by weight. The ingredients were 63 percent cream (made from cow's milk), 35.7 percent skim milk, 0.5 percent monoglycerides and diglycerides, 0.3 percent sodium alginate, 0.3 percent xanthan gum, and 0.2 percent carotene.

In NY E85271, dated July 30, 1999, a coffee cream, is a milk product which has cream, vitamin fortification, with a milk fat content of 12 percent or 10 percent was classified in subheadings 0401.30.0500/0401.30.2500, HTSUS.

In all these, and other uncited rulings, Customs has consistently held that cream which is not concentrated and does not contain added sugar or other sweetening matter is classifiable in heading 0401, HTSUS.

Accordingly, the classification you have requested, 0402, HTSUS, which covers cream that is either concentrated or contains added sugar or other sweetening matter is inappropriate because of the composition of Puck Cream Pure and Natural. Because Puck Cream Pure and Natural is neither concentrated nor contains added sugar or other sweetening matter, the original classification provided by Customs in NY E83139 in subheadings 0402.99.70/0402.99.90, HTSUS, is incorrect. The correct classification of Puck Cream Pure and Natural is subheading 0401.30.0500, HTSUS, or 0401.30.2500, HTSUS, depending on whether it is entered under quota or not.

HOLDING:

Puck Cream Pure and Natural, containing fresh cream from cow's milk, butterfat (minimum 23 percent), vegetable thickeners (soybean oil, sodium alginate, and locust bean gum), and salt, is classified in tariff rate quota subheading 0401.30.0500, HTSUS, If the tariff rate quota has closed, the product is classified in subheading 0401.30.2500, HTSUS.

NY E83139, dated June 25, 1999, is modified in accordance with this letter insofar as it relates to the classification of Puck Cream Pure and Natural. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon, Acting Director

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See also:

• Tariff No.: 0401.30.05 - Milk and cream, not concentrated, not sweetened, fat content o/6% but not o/45%, subject to add. US note 5 to Ch. 4
• Tariff No.: 0401.30.25 - Milk and cream, not concentrated, not sweetened, fat content o/6% but not o/45%, not subject to gen. nte 15 or add. nte 5 to Ch. 4
• Tariff No.: 0402.91.10 - Milk & cream, concen in non-solid forms, not sweetened, in airtight containers, subject to add. US note 11 to Ch.4
• Tariff No.: 0402.91.70 - Milk & cream, concen in non-solid forms, not sweetened, in airtight containers, not subject to gen. note 15 or add. US note 11 to Ch.4
• Tariff No.: 0402.99.70 - Milk & cream (except condensed milk), concentrated in non-solid forms, sweetened, subject to add. US note 10 to Ch. 4
• Tariff No.: 0402.99.90 - Milk & cream (except condensed milk), concentrated in non-solid forms, sweetened, not desc. gen. note 15 or add. US note 10 to Ch. 4
• Tariff No.: 9904.04.01 - Milk & cream, w/over 6% but n/over 45% butterfat, in 0401.30.25 & 0403.90.16 entered in value safeguard period, under $0.20/liter
• Tariff No.: 9904.04.08 - Milk & cream, w/over 6% but n/over 45% butterfat, in 0401.30.25 & 0403.90.16 entered in quantity safeguard period
• Tariff No.: 9904.04.50 - Dairy prod. in 0402.29.50 & .99.90, 0403.10.50 & .90.95, 1901.10.40 & .85, & 2202.90.28, entered value safe. period, under $0.65/kg
• Tariff No.: 9904.05.01 - Dairy prod. in Ch. 4 addl US note 1, in 2202.90.28 entered in quantity safeguard period
• Tariff No.: 9904.05.02 - Milk and cream, condensed or evaporated, in 0402.91.70 or 0402.91.90 entered in value safeguard period, under $0.15/kg
• Tariff No.: 9904.05.19 - Milk and cream, condensed or evaporated, in 0402.99.45 or 0402.99.55 entered in quantity safeguard period