CLA-2-04:RR:NC:2:231 K88862
Ms Lisa M. Thomas
PBB Global Logistics, Inc.
670 Young Street
Tonawanda, NY 14150
RE: The tariff classification of a cream substitute from Canada.
Dear Ms Thomas:
In your letter dated August 4, 2004, you requested a tariff classification ruling on behalf of your client, Dairytown Products Ltd. of New Brunswick, Canada.
The product in question is described as a “cream substitute,” manufactured by combining milk fat from butter or from butter oil with nonfat milk solids, such as skim milk powder or evaporated skim milk. The nonfat milk solids will be added as a liquid containing 9 percent solids. In processing, the finished mixture will be pasteurized, then shipped to the United States in insulated tankers. The cream substitute will have a fat content of about 40 percent by weight in the imported product, and is said to look and taste like cream, being interchangeable in recipes requiring fresh cream. While the product cannot be whipped, because of homogenization, bakeries, confectioners and manufacturers of frozen desserts can use it.
In your letter, you state that you believe this cream substitute is classifiable in subheading 0401.30.0500, HTS, as milk or cream, not containing sugar or other sweetening matter, of a fat content, by weight, exceeding 6 percent but not exceeding 45 percent. We would disagree. Heading 0401 provides for milk and cream. The instant product is a cream substitute, consisting of a mixture of milk fat from butter or butter oil and nonfat milk solids or evaporated (concentrated) nonfat milk. The resulting mixture is not cream, nor a mixture of reconstituted milk and cream. It appears to be a mixture of milk constituents,--i.e., of reconstituted skim milk and butterfat,--resembling cream. While the Explanatory Notes to heading 0401 indicate that the heading includes reconstituted milk and cream, the products contemplated therein are concentrated (including dried) milk or cream returned to their original qualitative and quantitative composition by the addition of water, and not a product reconstructed from natural milk constituents. Accordingly, we would classify this cream substitute in heading 0404 of the Harmonized Tariff Schedule.
If entered while the Tariff Rate Quota remains open, the applicable subheading for this cream substitute will be 0404.90.3000, Harmonized Tariff Schedule of the United States (HTS), which provides, inter alia, for products consisting of natural milk constituents, whether or not containing added sugar or other sweetening matter, not elsewhere provided for, other, other, dairy products described in additional U.S. note 1 to chapter 4: Described in additional U.S. note 10 to this chapter and entered pursuant to its provisions. The rate of duty will be 14.5 percent of the value.
If entered after the quota has filled, the applicable subheading for this cream substitute will be 0404.90.5000, Harmonized Tariff Schedule of the United States (HTS), which provides, inter alia, for products consisting of natural milk constituents, whether or not containing added sugar or other sweetening matter, not elsewhere provided for, other, other, dairy products described in additional U.S. note 1 to chapter 4: other. The rate of duty will be $1.189 per kilogram + 8.5 percent of the value. Further, goods entered in subheading 0404.90.5000, HTS, are subject to safeguard duties listed in subheadings 9904.04.50-9904.05.01.
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 Thomas P. Brady at 646-733-3030.
Sincerely,
Robert B. Swierupski
Director,
National Commodity
Specialist Division