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NY R01558

March 29, 2005

CLA-2-04: RR: NC: 2:231 R01558


TARIFF NO.: 0405.90.1040/0405.90.2040

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

RE: The tariff classification of a confectionary mixture from New Zealand.

Dear Mr. Roll:

In your letter dated February 28, 2005, on behalf of your client Fonterra (USA), Incorporated, you requested a tariff classification ruling.

The product is described as a confectionary mix. The product is said to be a spreadable water-in-oil type emulsion and to consist of 80.5 percent milk fat, 15.6 percent moisture, 1.6 percent salt, 1.3 percent sucrose and 1.1 percent milk solids. The product will be used in the manufacture of confectionary products and imported in 25-kilogram polyethylene lined cardboard cartons.

This product is neither “butter,” as defined in note 2(a) to Chapter 4, nor a “dairy spread,” as defined in note 2(b) to Chapter 4. The product does, however, have the composition of butter and, except for a small amount of added sugar, would be classifiable as butter. The Explanatory Notes to heading 0405, HTS, in describing products that can be classified in the final subheading of that heading, note that

“(C) Other fats and oils derived from milk. ...
This group includes dehydrated butter and ghee (a kind of butter made most commonly from milk of buffaloes or cows), as well as products consisting of a mixture of butter an small quantities of herbs, spices, flavourings, garlic, etc. (provided they retain the character of the products falling in this heading.”

In our opinion, the instant confectionary mix has the character of goods of heading 0405, HTS, and, accordingly, is classifiable therein.

The applicable subheading for this confectionary mixture will be 0405.30, Harmonized Tariff Schedule of the United States (HTS), which provides for butter and other fats and oils derived from milk; dairy spreads: Other. If imported with a dairy import license issued by the U.S. Department of Agriculture, the classification will be in subheading 0405.90.1040, HTS, as goods described in additional U.S. note 14 to this chapter and entered pursuant to its provisions. The rate of duty will be 10 percent ad valorem. If imported without a license, the classification will be in subheading 0405.90.2040, HTS, as other goods of heading 0405. The rate of duty will be $1.865/kg + 8.5 percent ad valorem.

Goods that are classified in subheading 0405.90.2040, HTS, may be subject to additional safeguard duties in subheadings 9904.05.379904.05.47, HTS.

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 Brady at 646-733-3030.


Robert B. Swierupski

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