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NY M82205




April 24, 2006

CLA-2-19:RR:NC:2:232 M82205

CATEGORY: CLASSIFICATION

TARIFF NO.: 1901.90.9095, 2101.30.0000

Ms. Margaret Eckert
CMA North America
German Agricultural Marketing Board
42 Lehigh Lane
Hicksville, NY 11801

RE: The tariff classification of beverage mixes from Germany.

Dear Ms. Eckert:

In your letter dated March 31, 2006, received by this office April 5, 2006, you requested a tariff classification ruling.

Samples, lists of ingredients, and processing flow charts for two Nestle brand beverage mixes accompanied your letter. The samples you submitted were examined and disposed of. Pero Instant Natural Beverage Powder (“Pero”), is a brown powder consisting of barley, roasted barley malt, chicoree, and rye. Pero Latte is a mixture of brown and white powder consisting of 72 percent “creamer” (39.82 percent non-fat milk solids, 25.82 percent hydrogenated coconut fat, 20.23 percent sweet whey powder, 11.33 percent whey permeate powder, 2.5 percent water, 0.2 percent milk fat, and 0.1 percent natriumhydroxid) , 23 percent “Pero” , and 5 percent sugar. The Pero is made by roasting and grinding barley, rye, chicory, and malt. The mixture then undergoes extraction, drying, and agglomeration. To make the “creamer”, whey permeate, lactose, and fat, are dissolved in skim milk, evaporated, and dried. The Pero is put up in canisters containing 220 grams, net weight. The Pero Latte is packed in canisters containing 250 grams, net weight. The consumer adds 1-2 heaping teaspoonfuls of the Pero, or 3-4 heaping teaspoonfuls of the Pero Latte to hot water to make the instant beverages.

The applicable subheading for the Pero Latte will be 1901.90.9095, Harmonized Tariff Schedule of the United States (HTSUS), which provides for food preparations of goods of headings 0401 to 0404, not containing cocoa or containing less than 5 percent by weight of cocoa calculated on a totally defatted basis, not elsewhere specified or includedotherotherother. The rate of duty will be 6.4 percent ad valorem.

The applicable subheading for the Pero Original will be 2101.30.0000, HTSUS, which provides for roasted chicory and other roasted coffee substitutes and extras, essences and concentrates thereof. The rate of duty will be 2.1 cents per kilogram. However, the Harmonized Tariff Schedule of the United States has been modified by adding in numerical sequence the following superior text and subheading to subchapter III of chapter 99 to the HTS:

Articles the product of Austria, Belgium, Denmark, Finland, France, the Federal Republic of Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, or Sweden:

9903.02.36 Roasted chicory and other roasted coffee substitutes and extracts, essences and concentrates thereof (provided for in subheading 2101.30).

Under this provision, the Pero Instant Natural Beverage Powder from Germany, classified under subheading 2101.30.0000, HTS, is subject to a 100 percent ad valorem rate of duty.

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/.

Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), provides, in general, that all articles of foreign origin imported into the United States must be legibly, conspicuously, and permanently marked to indicate the English name of the country of origin to an ultimate purchaser in the United States. The implementing regulations to 19 U.S.C. 1304 are set forth in Part 134, Customs Regulations (CFR Part 134). The products you have submitted are not properly marked with the country of origin. You may wish to discuss the matter of country of origin marking with the Customs import specialist at the proposed port of entry.

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 telephone number (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 John Maria at 646-733-3031.

Sincerely,

Robert B. Swierupski
Director,

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