Ms. Pamela Grzonka
Pioneer International Corp.
909 NE Loop 410 (Ste 720)
San Antonio, TX 78209
RE: The tariff classification of a frozen-dessert base from Ecuador.
Dear Ms. Grzonka:
In your letters dated Sept. 14, 2007 and Feb. 14, 2008, you requested a tariff classification ruling on behalf of KV Mark Imports (Miami, FL). A sample was submitted for our examination.
The item in question is a liquid, ready-to-use “base” from which a frozen dessert described as “yogurt ice cream” may be prepared. The product will be imported and sold, at ambient temperatures, in 1-liter aseptic cartons (“Tetra Paks”). The end user will simply pour the base into an ice-cream machine, which will convert the liquid into a frozen confection.
The ingredients of the base are stated to be as follows: fresh whole milk (74.38%), sugar (16%), cream (4%), powdered whole milk (2%), corn glucose (2.50%), stabilizers (0.85%), French vanilla essence (0.15%), vitamin premix (0.10%) and “crops dairy” pro-biotic cultures (0.02%).
The base is said to be manufactured by first mixing the milk, powdered milk, cream, sugar and glucose. The resulting blend is then pasteurized and homogenized, after which the pro-biotic cultures are added and the mixture is incubated and fermented for 3½ to 4 hours at a temperature of about 42° C. The mixture is then cooled while the stabilizers, vitamins, vanilla and additional sugar are added. Finally, the product is subjected to a UHT process and packaged in the 1-liter aseptic cartons.
The sample accompanying your inquiry has been analyzed by the New York Customs & Border Protection Laboratory, which finds it to be an opaque liquid containing 12.0% milk fat, 38.6% non-fat milk solids and 42.0% sucrose on a dry basis. The sample has a moisture content of 69.5% and an acidity of 0.79% (titratable acid calculated as lactic acid). The lab also notes that the product has been heat treated after fermentation.
The applicable subheading for the “base for yogurt ice cream,” if imported in quantities that fall within the limits described in additional U.S. note 10 to chapter 4, will be 1901.90.4200, 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 included: other: other: dairy products described in additional U.S. note 1 to chapter 4: dairy preparations containing over 10 percent by weight of milk solids: described 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.
Articles classifiable under subheading 1901.90.4200, HTSUS, which are products of Ecuador, may be entitled to duty-free treatment under the Generalized System of Preferences (GSP), or the Andean Trade Preference Act (ATPA), upon compliance with all applicable regulations. The GSP is subject to modification and periodic suspension, which may affect the status of your transaction at the time of entry for consumption or withdrawal from warehouse. To obtain current information on GSP, check our Web site at www.cbp.gov and search for the term "GSP".
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, HTSUS, 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, HTSUS, will be subject to additional duties based on their value, as described in subheadings 9904.04.67 to 9904.04.74, HTSUS.
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.
Robert B. Swierupski