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NY 858279


December 18, 1990

CLA-2-04:S:N:N1:229

CATEGORY: CLASSIFICATION

TARIFF NO.: 0404.90.2000 (9904.10.60)

Ms. Deborah Maxville
A.N. Deringer, Inc.
P.O. Box 824
Fort Covington, N.Y. 12937-0824

RE: The tariff classification of CAL-EZE from Canada.

Dear Ms. Maxville:

In your letter dated November 12, 1990, you requested a tariff classification ruling on behalf of Glengarry Biotech of Cornwall, Ontario, Canada.

CAL-EZE is described as a set of 12 dry powder calibration standards (calibrants) which, when reconstituted with warm tap water, can be used to calibrate all infrared milk analyzer. According to the information provided, these twelve calibrants are based on dairy ingredients--that is, they consist of powdered whole or skim milk or of mixtures of these milks with each other or with other milk constituents, such as lactose, sodium caseinate, or butter oil. (The butterfat component, where added, includes emulsifiers to aid in reconstituting the powders and to stabilize the resulting emulsions, and some antioxidants.) When reconstituted, the powders produce calibration milks that cover a wide range of fat, protein, and lactose composition combinations.

To reconstitute a calibrant, a user first prepares a clean measuring beaker by adding a preservation tablet. The beaker, with tablet, is then placed on a scale, and the scale adjusted for tare. A quantity of the calibrant powder is weighed out, according to the label instructions for that particular standard. Eighty-five milliliters of tap water, at 50o Centigrade is first measured into a graduated cylinder and then poured into the mixing beaker with the powder and preservative tablet. Using a dropper, water is added to bring the mixture exactly to 100 grams. The beaker is moved from the scale and the contents mixed with a Braun mixer for three minutes. The solution is permitted to settle before being poured into the plastic storage container.

A sample of the product, submitted with this request, consisted of two fitted cardboard trays, each holding twelve plastic containers. The twelve containers on the top tray were labeled as sample 1 through sample 12, and each contained a different sample calibrant in the form of a white powder. The remaining twelve containers, designed for the refrigerated storage of the reconstituted calibrant, were of opaque plastic and circular (about 9 centimeters high and 4.5 centimeters in diameter), with an attached sealant-type cap. These containers were calibrated on the side from one to four ounces. Between the 3 and 4 ounce mark, a line marked "E.P.A. 100 ML FILL LINE" appeared. When imported, CAL-EZE will consist, at least, of the powdered calibration standards, storage containers, and a package of preservation tablets. No tablets were included in this sample.

CAL-EZE will be sold to dairy plants and to other users with similar needs to facilitate the calibration of their infrared milk analyzers. Infra-red milk analyzers are used to measure the fat, protein, and lactose components of milk. The product will be marketed as a "Regular Kit" (12 calibrants, 12 storage containers, preservative tablets) or as a "Starter Kit" (all the components of the "Regular Kit", plus a Braun mixer, mixing beakers, spatula, and droppers). In our opinion, both kits would be considered "sets" for tariff purposes, since the various components in each kit have been combined to provide for the preparation, preservation, and storage of calibration standards for infra-red milk analyzers. The classification of "sets" is governed by Rule 3 of the General Rules of Interpretation to the Harmonized Tariff Schedule of the United States, which requires that the classification of such products be determined by the classification of that component in the set which imparts the "essential character" to the whole. In the instant case, the "essential character" of CAL-EZE is imparted by the milk-based calibrants.

The applicable subheading for CAL-EZE, either "Regular" or "Starter" kit, will be 0404.90.2000, Harmonized Tariff Schedule of the United States (HTS), which provides, in part, for "products consisting of natural milk constituents, whether or not containing added sugar or other sweetening matter, not elsewhere specified or included:...Other:...Articles of milk or cream". The rate of duty will be 17.5 percent ad valorem.

Goods classifiable under subheading 0404.90.2000, HTS, which have originated in the territory of Canada, will be entitled to a 14 percent ad valorem rate of duty under the United States-Canada Free Trade Agreement (FTA) upon compliance with all applicable regulations. Effective January 1, 1991, the rate of duty applicable under the United States-Canada Free Trade Agreement (FTA) will be 12.2 percent ad valorem.

Articles classifiable in HTS subheading 0404.90.2000 are subject to quota quantity restrictions listed in subchapter IV of Chapter 99 in HTS subheading 9904.10.60, which limits the amount of such products which may be imported from all countries (including Canada) to an annual quota quantity of 2,721 kilograms. Additionally, an import license, issued to the importer by the United States Department of Agriculture, will be required at the time such merchandise is withdrawn from warehouse or entered for consumption into the United States.

This ruling is being issued under the provisions of Section 177 of the Customs Regulations (19 C.F.R. 177).

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is imported. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

Jean F. Maguire
Area Director

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