CLA-2-04:RR:NC:2:231 C85958

0402.29.5000; 1901.90.4200; 1901.90.4300

Mr. George Kampouris
G. Van Kam Trading Company Limited
4920 De Maisonneuve W., #11
Montreal, Quebec H3Z 1N1
Canada

RE: The tariff classification and status under the North American Free Trade Agreement (NAFTA) of dairy products from Canada; Article 509.

Dear Mr. Kampouris:

In your letter, dated March 23, 1998, you requested a ruling on the status of dairy products from Canada under the NAFTA. The products are described thus:

1. "Product A" is a homogeneous, dry blend of 90 percent nonfat dry milk, 5 percent dry whole milk, and 5 percent sugar. It contains, by weight, 47 percent naturally occurring lactose, 31-33 percent protein, 7-8 percent ash, 4.5-5.5 percent sugar, 4 percent moisture, and 2 percent butterfat. It will be packed in 25 kilogram or 50 pound bags.

2. "Product B" is a homogeneous, dry blend of 90 percent nonfat dry milk, 5 percent dry whole milk, and 5 percent lactose. It contains, by weight, 52 percent lactose (comprised of 47 percent naturally occurring lactose and 4.5-5.5 percent added lactose), 31-33 percent protein, 7-8 percent ash, 4 percent moisture, and 2 percent butterfat. It will be packed in 25 kilogram or 50 pound bags.

3. "Product C" is a homogeneous, dry blend of dry whole milk and lactose. It contains, by weight, 40 percent lactose (comprised of 35 percent naturally occurring lactose and 4.5-5.5 percent added lactose), 24-28 percent butterfat, 23-27 percent protein, 6 percent ash, and 4 percent moisture. It will be packed in 25 kilogram or 50 pound bags.

4. "Product D" is a homogeneous, dry blend of dry whole milk and maltodextrin. It contains, by weight, 35 percent naturally occurring lactose, 24-28 percent butterfat, 23-27 percent protein, 6 percent ash, 4.5-5.5 percent maltodextrin, and 4 percent moisture. It will be packed in 25 kilogram or 50 pound bags.

The dairy portion of all products will be wholly sourced from Canada. The sweetener portion will be of Canadian or other NAFTA origin. All products will be manufactured by dry blending. They will be used as ingredients in the manufacture of confectionery good and other foods.

The applicable subheading for "Product A," "Product B," and "Product C," if imported in quantities that fall within the limits described in additional U.S. note 10 to chapter 4, will be 0402.29.1000, Harmonized Tariff Schedule of the United States (HTS), which provides for milk and cream, concentrated or containing added sugar or other sweetening matter, in powder, granules or other solid forms, of a fat content, by weight, exceeding 1.5 percent, other, described in additional U.S. note 10 to chapter 4 and entered pursuant to its provisions. The general rate of duty will be 17.5 percent ad valorem. If the quantitative limits of additional U.S. note 10 to chapter 4 have been reached, the products will be classified in subheading 0402.29.5000, HTS, and will be dutiable at US $1.169 per kilogram, plus 15.8 percent ad valorem. In addition, products classified in subheading 0402.29.5000, HTS, will be subject to additional duties based on their value, as described in subheadings 9904.04.50 - 9904.05.01, HTS.

The applicable subheading for "Product D," if the maltodextrin does not exceed 5 percent by weight (see Explanatory Note 04.02, HTS, regarding starch), and if imported in quantities that fall within the limits described in additional U.S. note 8 to chapter 4, will be 0402.21.3000, HTS, which provides for milk and cream, concentrated or containing added sugar or other sweetening matter, in powder, granules or other solid forms, of a fat content, by weight, exceeding 1.5 percent, not containing added sugar or other sweetening matter, of a fat content, by weight, exceeding 3 percent but not exceeding 35 percent, described in additional U.S. note 8 to chapter 4 and entered pursuant to its provisions. The general rate of duty will be 6.8 cents per kilogram. If the quantitative limits of additional U.S. note 8 to chapter 4 have been reached, the product will be classified in subheading 0402.21.5000, HTS, and will be dutiable at US $1.156 per kilogram. In addition, products classified in subheading 0402.21.5000, HTS, will be subject to additional duties based on their value, as described in subheadings 9904.04.31 - 9904.04.39, HTS. The applicable subheading for "Product D," if the maltodextrin exceeds 5 percent by weight, and if imported in quantities that fall within the limits described in additional U.S. note 10 to chapter 4, will be 1901.90.4200, HTS, which provides for food preparations of goods of headings 0401 to 0404, not containing cocoa...not elsewhere specified or included...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 general rate of duty will be 16 percent ad valorem. 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, HTS, and will be dutiable at US $1.096 per kilogram, plus 14.4 percent ad valorem. In addition, products classified in subheading 1901.90.4300, HTS, will be subject to additional duties based on their value, as described in subheadings 9904.04.50 - 9904.05.01, HTS. Products classifiable in subheadings 0402.21.3000, HTS, 0402.29.1000, HTS, or 1901.90.4200, HTS, being wholly obtained or produced entirely in the territory of Canada, Mexico, and/or the United States, will meet the requirements of HTSUSA General Note 12(b)(i), and will therefore be entitled to a free rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements.

Importations of milk and milk products are subject to import regulations administered by various U.S. agencies. Requests for information regarding labeling regulations administered by the U.S. Food and Drug Administration may be addressed to that agency at the following location:

U.S. Food and Drug Administration Division of Regulatory Guidance HFF 314, 200 C Street, S.W. Washington, DC 20204

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 A.P.H.I.S., Veterinary Services Federal Building, Room 756 6505 Belcrest Road Hyattsville, MD 20782

This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 CFR 181).

This ruling letter is binding only as to the party to whom it is issued and may be relied on only by that party.

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 Ralph Conte at (212) 466-5759.


Sincerely,

Robert B. Swierupski
Director
National Commodity
Specialist Division