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NY M81123




April 4, 2006

CLA-2-21:RR:NC:N2:228 M81123

CATEGORY: CLASSIFICATION

TARIFF NO.: 2106.90.9997

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

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

Dear Mr. Roll:

In your letters dated December 15, 2005 and March 7, 2006, on behalf of Fonterra (USA), Inc., you requested a tariff classification ruling.

A sample was submitted with your first letter and an ingredients breakdown, declaring the approximate composition of the product, accompanied your March letter. The sample was forwarded to the Customs laboratory for analysis. The product, Graham Flavored Crisp (identified as “Protein Crisp 40” on the sample label), consists of brown-colored nuggets, approximately 3/8-inch square and 1/8-inch thick. It is said to be composed whey protein concentrate (60 percent, minimum), wheat flour and corn starch (between 5 and 15 percent each), sucrose and molasses (between 2 and 10 percent each) and malt extract and honey (between 2 and 5 percent each). The whey protein concentrate ingredient is said to contain greater than 80 percent protein, on a dry basis, and laboratory analysis found the sample contained 4.56 percent cane or beet sugar, by dry weight. The nuggets are prepared by mixing all ingredients with water, extruding, drying to approximately 3 percent moisture, and packing in plastic-lined boxes weighing between 15 and 25 kilograms. The merchandise will be marketed as an “inclusion”, an ingredient in a variety of foods for human consumption, such as cereals, snack foods, or baked goods.

In your December letter, you suggested the products were classified in subheading 1905.90.9090, Harmonized Tariff Schedule of the United States (HTSUS), as an “other bakers’ ware[ ]”. We disagree. Noting the product’s ingredient composition, method of manufacture, and use, it is classified elsewhere.

The applicable subheading for this product will be 2106.90.9997, HTSUS, which provides for food preparations not elsewhere specified or includedother otherothercontaining sugar derived from sugar cane and/or sugar beets. The rate of duty will be 6.4 percent ad valorem.

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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