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NY N009374





April 27, 2007

CLA-2-04:RR:NC:SP:231

CATEGORY: CLASSIFICATION

TARIFF NO.: 0402.91.3000; 0402.91.9000

Mr. Michael E. Roll
Pisani & Roll
1875 Century Park East, Suite 600
Los Angeles, CA 90067

RE: The tariff classification of an “evaporated cream product” from New Zealand.

Dear Mr. Roll:

In your letter dated April 3, 2007, you requested a tariff classification ruling on behalf of your client, Fonterra (USA), Inc.

The item in question, identified as an “evaporated cream product” (“ECP”), is said to be an oil-in-water emulsion that, at room temperature, will be in the form of a thick liquid in which a small amount of fat separation may occur. You state that the ECP will be made by the following process:

Whole milk will be pasteurized in accordance with industry standards. The pasteurized whole milk will then be evaporated to partially remove the water. The evaporated whole milk is then put through a cream concentrator to separate the cream to produce the concentrated cream with a fat content of between 65% and not more than 80% milk fat. The product will be packed in a non-airtight polyethylene-lined 25-kg corrugated cardboard box, and will then be frozen to maintain product quality for storage and shipment. The heat applied as part of the evaporation process is sufficient to prevent spoilage when the product is held under refrigerated conditions. Freezing ensures extended shelf life.

Your client intends to import four different types of ECP, whose contents are detailed in the following table:

Product Fat SNF* Water
ECP 65 65.0% 5.4% 29.6%
ECP 70 70.0% 4.6% 25.4%
ECP 75 75.0% 3.8% 21.2%
ECP 80 80.0% 3.0% 17.0%

(* solids non-fat)

You also state the following with regard to this merchandise:

Importantly, in the manufacture of this product, evaporation is used to remove water in addition to the concentration of fat that is achieved via the normal course of separation. As a result, the product has a higher non-fat solid content than what would be achieved through separation alone. Finally, once water is added back to the concentrated product, it will meet the definition of “reconstituted cream” set forth in 21 C.F.R. 133.3 (definition of cream for use in cheese).

The applicable subheading for the ECP, if imported under quota, will be 0402.91.3000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for milk and cream, concentrated or containing added sugar or other sweetening matter: other: not containing added sugar or other sweetening matter: described in additional U.S. note 11 to chapter 4 and entered pursuant to its provisions: other than in airtight containers. The rate of duty will be 3.3 cents per kilogram.

The applicable subheading for the ECP, if imported outside the quota, will be 0402.91.9000, HTSUS, which provides for milk and cream, concentrated or containing added sugar or other sweetening matter: other: not containing added sugar or other sweetening matter: other: other than in airtight containers. The rate of duty will be 31.3 cents per kilogram. Products classified in subheading 0402.91.9000, HTSUS, are also subject to additional safeguard duties, as described in subheadings 9904.05.029904.05.19.

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/.

Importations of milk and milk products are subject to 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
Telephone (301) 443-6553

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

U.S. Department of Agriculture (USDA)
APHIS, VS, NCIE
Products Program
4700 River Road, Unit 40
Riverdale, MD 20737-1231
Telephone: (301) 734-3277

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 Nathan Rosenstein at 646-733-3030.

Sincerely,

Robert B. Swierupski
Director,

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