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NY K85307

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May 6, 2004
CLA-2-04:RR:NC:2:231 K85307

CATEGORY: CLASSIFICATION

TARIFF NO.: 0401.10.0000; 0401.20.2000; 0401.20.4000; 0402.21.3000; 0402.21.5000; 0405.10.1000; 0405.10.2000

Mr. Fernando Alvarez
Alvarez and Partners
136 North Main Street
Port Chester, NY 10573

RE: The tariff classification of whole powdered milk, UHT fluid milk, UHT delactosed (enzyme-treated) semi-skim milk, UHT skim milk, and salted butter from Colombia.

Dear Mr. Alvarez:

In your letter, dated April 14, 2004, you have requested a tariff classification ruling.

The merchandise is described thus:

”Colanta” brand whole powdered milk with vitamins A and D3. The fat content is 26 percent. UHT fluid milk enriched with vitamins B1, B2, D3, and niacin. The nonfat solid content is 8.20 percent and the fat content is 3 percent. UHT delactosed (enzyme-treated) semi-skim milk enriched with vitamins B1, B2, D3, and niacin. The fat content ranges from 0.5 percent (minimum) to 2.9 percent (maximum). UHT skim milk enriched with vitamins B1, B2, D3, and niacin. The fat content is 1.5 percent. “Colanta” brand salted butter, with a fat content of 82 percent (min), a moisture content of 16 percent (max), non fat solids of 2 percent and a salt content of 3 percent (max).

The applicable subheading for whole powdered milk with a fat content of 26 percent (item 1), if entered under quota, will be 0402.21.3000, Harmonized Tariff Schedule of the United States (HTS), which provides for milk and cream, concentrated or containing added sugar or other sweetening matter, in powder, granules or other solid forms, of a fat content, by weight, exceeding 1.5 percent, not containing added sugar or other sweetening matter, of a fat content, by weight, exceeding 3 percent but not exceeding 35 percent, described in additional U.S. note 8 to chapter 4 and entered pursuant to its provisions. The rate of duty will be 6.8 cents per kilogram.

The applicable subheading for whole powdered milk with a fat content of 26 percent (item 1), if entered outside the quota, will be 0402.21.5000, HTS, which provides for milk and cream, concentrated or containing added sugar or other sweetening matter, in powder, granules or other solid forms, of a fat content, by weight, exceeding 1.5 percent, not containing added sugar or other sweetening matter, of a fat content, by weight, exceeding 3 percent but not exceeding 35 percent, other. The rate of duty will be $1.092 per kilogram. In addition, products classified in subheading 0402.21.5000, HTS, will be subject to additional safeguard duties based on their value, as described in subheadings 9904.04.31 – 9904.04.39.

The applicable subheading for UHT fluid milk with a fat content of 3 percent (item 2), and UHT delactosed (enzyme-treated) semi-skim milk, if the fat content, by weight, exceeds 1 percent but does not exceed 6 percent (item 3), and UHT skim milk with a fat content of 1.5 percent (item 4), if entered under the tariff rate quota, will be 0401.20.2000, Harmonized Tariff Schedule of the United States (HTS), which 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. The rate of duty will be 0.43 cents per liter.

If the tariff rate quota is full, the applicable tariff provision for UHT fluid milk with a fat content of 3 percent (item 2), UHT delactosed (enzyme-treated) semi-skim milk, if the fat content, by weight, exceeds 1 percent but does not exceed 6 percent (item 3), and UHT skim milk with a fat content of 1.5 percent (item 4), will be 0401.20.4000, HTS, which 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, other. The rate of duty will be 1.5 cents per liter.

The applicable subheading for UHT delactosed (enzyme-treated) semi-skim milk, if the fat content, by weight, does not exceed 1 percent (item 3), will be 0401.10.0000, HTS, which provides for milk and cream, not concentrated nor containing added sugar or other sweetening matter, of a fat content, by weight, not exceeding 1 percent. The rate of duty will be 0.34 cents per liter.

The applicable subheading for “Colanta” brand salted butter (item 5), if entered under quota, will be 0405.10.1000, HTS, which provides for butter and other fats and oils derived from milk; dairy spreads, butter, described in additional U.S. note 6 to chapter 4 and entered pursuant to its provisions. The rate of duty will be 12.3 cents per kilogram.

The applicable subheading for “Colanta” brand butter (item 5), if entered outside the quota, will be 0405.10.2000, HTS, which provides for butter and other fats and oils derived from milk; dairy spreads, butter, other. The rate of duty will be $1.541 per kilogram. In addition, products classified in subheading 0405.10.2000, HTS, will be subject to additional safeguard duties based on their value, as described in subheadings 9904.04.09 – 9904.04.21.

Articles classifiable under subheading 0401.10.0000, HTS, 0401.20.2000, HTS, 0402.21.3000, HTS, or 0405.10.1000, HTS, which are products of Colombia, are entitled to duty free treatment under the Andean Trade Preference Act (ATPA) upon compliance with all applicable regulations.

For goods classified in subheading 0402.21.3000, HTS, or 0405.10.1000, HTS, an import license, issued to the importer by the United States Department of Agriculture, will be required at the time that such merchandise is entered for consumption into the United States.

Questions regarding licensing procedures and applications for licenses to import cheese subject to quota should be addressed to:

Import Quota Manager for Dairy Products
STOP 1029/Room 5531-S
U.S. Department of Agriculture
1400 Independence Avenue, S.W.
Washington, DC 20250-1029

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 that agency at the following location:

Food and Drug Administration
Division of Import Operations and Policy
5600 Fishers Lane
Rockville, MD 20857

Because of new anti-terrorism programs on imports, foreign suppliers are required to be registered with the FDA prior to shipping foodstuffs to the United States. You may check the website at www.fda.gov/oc/bioterrorism/bioact.html. The telephone number for the online registration help desk is 1-800-216-7331 (within the US) or 1-301-575-0156 (within or outside the US). FAX questions to 1-301-210-0247. Prior notice is required for any shipment exported to the United States. Information on prior notice is included in the enclosed attachment.

The FDA has a published standard of identity for milk in 21 CFR 131.110, which requires that products labeled as milk contain a minimum of 8.25 percent nonfat solids and a minimum of 3.25 percent milkfat. The specifications for your UHT whole milk (item 2) indicate a nonfat solids content of only 8.20 percent and a fat content of only 3 percent. Accordingly, we recommend that you consult with the FDA for guidance as to proper labeling.

Requests for information regarding applicable regulations administered by the U.S. Department of Agriculture may be addressed to that agency at the following location:

A.P.H.I.S., Veterinary Services
Federal Building, Room 756
6505 Belcrest Road
Hyattsville, MD 20782

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 (646) 733-3030.

Sincerely,

Robert B. Swierupski
Director

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See also:

• Tariff No.: 0401.10.00 - Milk and cream, unconcentrated, with no added sweeteners, fat content, by weight, not more than 1 percent
• Tariff No.: 0401.20.20 - Milk and cream, unconcentrated, unsweetened, fat content over 1% but n/o 6%, for not over 11,356,236 liters entered in any calender year
• Tariff No.: 0401.20.40 - Milk and cream, unconcentrated, unsweetened, fat content over 1% but not over 6%, for over 11,356,236 liters entered in any calender year
• Tariff No.: 0402.21.30 - Milk & cream, concen, not sweetened, in powder/granules/oth solid forms, fat cont o/3% but not o/35%, subj to Ch 4 US note 7
• Tariff No.: 0402.21.50 - Milk & cream, concen, not sweetened, in powder/granules/oth solid forms, fat cont o/3% but not o/35%, not subj to GN15 or Ch 4 US.S. note 7
• Tariff No.: 0405.10.10 - Butter subject to quota pursuant to chapter 4 additional US note 6
• Tariff No.: 0405.10.20 - Butter not subject to general note 15 and in excess of quota in chapter 4 additional U.S. note 6
• Tariff No.: 9904.04.09 - Butter & cream with over 45% butterfat in 0401.30.75, 0403.90.78, & 0405.00.40, entered in value safeguard period, under $0.60/kg
• Tariff No.: 9904.04.21 - Butter & cream with over 45% butterfat in 0405.10.20, entered in quantity safeguard period
• Tariff No.: 9904.04.31 - Dried milk & cream, w/ or w/o sugar or sweetening matter in 0402.21.50 or 0403.90.55, entered in value safeguard period, under $0.15/kg
• Tariff No.: 9904.04.39 - Dried milk & cream, w/ or w/o sugar or sweetening matter in 0402.21.50 or 0403.90.55, entered in quantity safeguard period