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NY M80884




April 18, 2006

CLA-2-19:RR:NC:N2:228 M80884

CATEGORY: CLASSIFICATION

TARIFF NO.: 1901.90.4200; 1901.90.4300

Mr. Michael Roll
Pisani & Roll
1875 Century Park East
Los Angeles, CA 90067

RE: The tariff classification of a food product from New Zealand

Dear Mr. Roll:

In your letters dated September 22, 2005 and March 9, 2006, on behalf of Fonterra (USA), Inc., you requested a tariff classification ruling. Your second letter was received by this office on March 20, 2006.

An ingredients breakdown and general, non-product specific promotional literature about pediatric nutrition was provided with your March letter. The product is described as a dietary supplement, in powder form, designed to meet the needs of children older than 12 months of age. The stated ingredients are 52.01 percent skim milk solids, 21.57 percent lactose, 18.24 percent oil blend, 5.17 percent sucrose, 1.47 percent vitamins and minerals, 1.12 percent inulin, and 0.41 percent lecithin. It will be imported in 25-kilogram bags and repackaged into retail containers. Your March letter states you were unable to provide usage or preparation instructions for the retail consumer. Your first letter, however, suggests the retail purchaser would be required to “reconstitute” the product prior to serving.

In your September letter, you suggested the product should be classified as an “other” food preparation, in heading 2106, Harmonized Tariff Schedule of the United States (HTSUS). We do not agree. Noting the good’s ingredient composition and use, it is more specifically provided for elsewhere.

The applicable subheading for this product, if imported in quantities that fall within the limits described in additional U.S. note 10 to chapter 4, will be 1901.90.4200, HTSUS, which provides for food preparations of goods of headings 0401 to 0404, not containing cocoaotherotherdairy products described in additional U.S. note 1 to chapter 4dairy preparations containing over 10 percent by weight of milk solidsdescribed in additional U.S. note 10 to chapter 4 and entered pursuant to its provisions. The rate of duty will be 16 percent ad valorem. If the quantitative limits of additional U.S. note 10 to chapter 4 have been reached, the product will be classified in subheading 1901.90.4300, HTS, and dutiable at the rate of $1.035 per kilogram plus 13.6 percent ad valorem. In addition, products classified in subheading 1901.90.4300, HTS, will be subject to additional duties based on their value, as described in subheadings 9904.04.67 to 9904.04.74, HTS.

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/.

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.

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,

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