H305298

HQ H305298 April 16, 2020 OT:RR:CTF:FTM: H305298 CDM CATEGORY: Classification TARIFF NO.: 1901.90.9195 Mr. Renato Montenegro R. Mtres Holding International Limited Craigmuir Chambers PO Box 71 Road Town British Virgin Islands RE: Revocation of NY N305031 (classification of evaporated creamer from Malaysia) Dear Mr. Montenegro R.: On July 24, 2019, U.S. Customs and Border Protection (“CBP”) issued New York Ruling Letter (“NY”) N305031 to Mr. Robert Avon of Mtres Holding International Limited (“Mtres Holding”). The ruling pertained to the tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of evaporated creamer from Malaysia. In NY N305031, CBP classified the evaporated creamer in subheading 1901.90.6100, Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”), 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.” You submitted a request for reconsideration of NY N305031. We have reviewed NY N305031 and found it to be in error, because the CBP Laboratory report indicated that the product contains 5.4 percent non-fat milk solids, which is below the requisite amount of “over 10 percent milk by weight of milk solids” listed in subheading 1901.90.6100, HTSUSA. Accordingly, NY N305031 is revoked. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed action was published on March 11, 2020, in Volume 54, Number 9, of the Customs Bulletin. No comments were received in response to this notice. FACTS: In NY N305031, evaporated creamer from Malaysia was described as follows: The product is composed of milk, palm oleins, maltodextrin, emulsifier, stablizers, vitamins A and D3. . . . Evaporated creamer is packed in cans with a net weight of 170 grams, 390 grams, and 400 grams, respectively. In this ruling, Mtres Holding submitted a technical data sheet for the product but no sample. In your request for reconsideration of NY N305031, you claimed that CBP erred in stating that the evaporated creamer “contains 25% milk solids when it only contains according to our technical data sheet and formulation 9% of skim milk solids.” You also submitted a sample with your reconsideration request. CBP Laboratory Report No. NY20191509, dated October 17, 2019, identified the sample as consisting of two small cans labeled “sample” and containing the following label description: evaporated creams, 8 percent vegetable fat, 25 percent total product solids. The CBP Laboratory indicated that, based on its analysis, the product contains 5.4 percent non-fat milk solids. ISSUE: Whether evaporated creamer is properly classified in subheading 1901.90.6100, HTSUSA, as dairy preparations containing over 10 percent by weight of milk solids, or in subheading 1901.90.9195, HTSUSA, as other food preparations not elsewhere specified. LAW AND ANALYSIS: Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied. The 2019 HTSUS provisions under consideration are as follows: 1901 Malt extract; food preparations of flour, groats, meal, starch or malt extract, not containing cocoa or containing less than 40 percent by weight of cocoa calculated on a totally defatted basis, not elsewhere specified or included; 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 * * * 1901.90 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 1901.90.61 Described in additional U.S. note 10 to chapter 4 and entered pursuant to its provisions * * * 1901.90.91 Other: Other: Other: Other: Other: Other You argue that the evaporated creamer contains only nine percent of skim milk solids so it cannot be classified in subheading 1901.90.61, HTSUS, which must contain over 10 percent by weight of milk solids. There is no dispute that the evaporated creamer is classifiable under heading 1901, 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.” Note 4(b) to chapter 4 guides that “Products obtained from milk by replacing one or more of its natural constituents (for example butyric fats) by another substance (for example, oleic fats)” belongs in heading 1901 or 2106, HTSUS. The subject merchandise meets the requirements for heading 1901, HTSUS. There is also no dispute that the evaporated creamer is classifiable under the six digit subheading 1901.90, HTSUS, which provides for “Other: Other.” The question lies at the eight-digit subheading level. NY N305031 classified the evaporated creamer in the eight-digit subheading 1901.90.61, HTSUS, which requires “Dairy products described in additional U.S. note 1 to chapter 4: Dairy Preparations containing over 10 percent by weight of milk solids.” The referenced additional U.S. note 1 to chapter 4 provides “For the purposes of this schedule, the term ‘dairy products described in additional U.S. note 1 to chapter 4’ means any of the following goods: malted milk, and articles of milk or cream (except (a) white chocolate and (b) inedible dried milk powders certified to be used for calibrating infrared milk analyzers); articles containing over 5.5 percent by weight of butterfat which are suitable for use as ingredients in the commercial production of edible articles (except articles within the scope of other import quotas provided for in additional U.S. notes 2 and 3 to chapter 18); or, dried milk, whey or buttermilk (of the type provided for in subheadings 0402.10, 0402.21, 0403.90 or 0404.10) which contains not over 5.5 percent by weight of butterfat and which is mixed with other ingredients, including but not limited to sugar, if such mixtures contain over 16 percent milk solids by weight, are capable of being further processed or mixed with similar or other ingredients and are not prepared for marketing to the ultimate consumer in the identical form and package in which imported.” The evaporated creamer is an article of cream. At issue is the percentage of milk solid content, which has been determined by the CBP Laboratory. According to the CBP Laboratory result of the sample that you provided with your reconsideration request, the evaporated creamer only contains 5.4 percent of the non-fat milk solids. Hence, the evaporated creamer does not meet the requisite milk solid content to be classified as a dairy preparation containing over 10 percent of weight of milk solids. Therefore, under GRI 1, the evaporated creamer does not meet the terms of the subheading 1901.90.61, HTSUS. Since the evaporated creamer does not fall under any of the provisions in subheadings 1901.90.10-1901.90.72, HTSUS, this product is classified under the other provision provided in subheading 1901.90.91, HTSUS. Accordingly, we find that the

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.The 2019 HTSUS provisions under consideration are as follows:1901 Malt extract; food preparations of flour, groats, meal, starch or malt extract, not containing cocoa or containing less than 40 percent by weight of cocoa calculated on a totally defatted basis, not elsewhere specified or included; 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* * *1901.90 Other: Other: Dairy products described in additional U.S. note 1 to chapter 4: Dairy preparations containing over 10 percent by weight of milk solids1901.90.61 Described in additional U.S. note 10 to chapter 4 and entered pursuant to its provisions * * *1901.90.91 Other: Other: Other: Other: Other: OtherYou argue that the evaporated creamer contains only nine percent of skim milk solids so it cannot be classified in subheading 1901.90.61, HTSUS, which must contain over 10 percent by weight of milk solids. There is no dispute that the evaporated creamer is classifiable under heading 1901, 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.” Note 4(b) to chapter 4 guides that “Products obtained from milk by replacing one or more of its natural constituents (for example butyric fats) by another substance (for example, oleic fats)” belongs in h