H330555

HQ H330555 September 11, 2023 OT:RR:CTF:FTM H330555 BJK CATEGORY: Classification TARIFF NO.: 1901.90.61; 1901.90.62 Mr. Robert B. Back Focus Solutions B.V. Wilhelminakanaal Noord 2A 4902 VR Oosterhout The Netherlands RE: Tariff classification of Natural Cream Emulsion Flavoring from the Netherlands Dear Mr. Back: This is in response to your request, on behalf of Focus Solutions B.V., dated February 10, 2023, for a binding ruling regarding the tariff classification of a natural cream emulsion flavoring, WONF F-1088, product number #01-061-145-000, under the Harmonized Tariff Schedule of the United States (“HTSUS”), imported into the United States from the Netherlands. Your request was forwarded by the National Commodity Specialist Division to this office for a response. In arriving at our determination, we considered the information submitted in your ruling request and additional information submitted via email. Within your request for a binding ruling, you asked that certain information submitted in connection with this request be treated as confidential. Inasmuch as this request conforms to the requirements of 19 C.F.R. § 177.2(b)(7), your request for confidentiality is approved. The information contained within the brackets of your request will not be released to the public. FACTS: The subject merchandise is a natural cream emulsion flavoring, WONF F-1088, product number #01-061-145-000 (hereinafter referred to as “cream flavoring”), that is described as a light white liquid that appears and smells like standard cream, milk, or other dairy products. The cream flavoring is comprised of the following: a cream base [***], [***]; water, [***]; and a “natural flavor” [***], [***]. According to the requestor, the cream flavoring is manufactured by mixing and blending all the ingredients together in a tank. No distillation or special processing beyond the mixing and blending in the tank occurs. The primary ingredient is the cream base, which is composed of the following ingredients: [***] cream, [***] sugar derived from sugar beet, [***] milk protein concentrate, and [***] water. The cream base is said to contain no alcohol and functions to impart cream flavoring in product. The secondary ingredient is the “natural flavor” [***], which contains alcohol, and is composed of [***] and [***]. A sample of the cream flavoring was submitted to U.S. Customs and Border Protection (CBP) for laboratory analysis. Based on CBP’s lab analysis, the cream flavoring contained 21.4 percent sucrose and 0.8 percent lactose on an as is basis. Fructose, glucose, and maltose were not detected. The sample contained 6.2 percent total milk fat and 4 percent protein on an as is basis. The sample contained 11 percent total milk solid on an as is basis. No vanillin, ethylvanillin, maltol or any other flavor/fragrance ingredient were observed in the sample. Semiquantitative analysis showed that the sample contained approximately 15 percent ethanol. The cream flavoring is not intended for consumption as a beverage, but rather it is imported and sold in bulk to manufacturers for use in alcoholic beverage products to yield a cream flavoring and mouth feel. The cream flavor is said to contain 15.088 percent ABV before it is mixed into other alcohol to produce the final flavored beverage. ISSUE: What is the tariff classification of the cream flavoring? LAW AND ANALYSIS: Classification decisions under the HTSUS are made in accordance with the General Rules of Interpretation (“GRIs”). 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 2 through 6 may then be applied in order. The 2023 HTSUS provisions under consideration are as follows: 0402 Milk and cream, concentrated or containing added sugar or other sweetening matter: * * * 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: 1901.90.61 Described in additional U.S. note 10 to chapter 4 and entered pursuant to its provisions 1901.90.62 Other (See subheadings 9904.04.50 – 9904.05.01) * * * 2208 Undenatured ethyl alcohol of an alcoholic strength by volume of less than 80 percent by vol.; spirits, liqueurs and other spirituous beverages: 2208.90 Other: 2208.90.80 Other * * * 3302 Mixtures of odiferous substances and mixtures (including alcoholic solutions) with a basis of one or more of these substances, of a kind used as raw materials in industry; other preparations based on odiferous substances, of a kind used for the manufacture of beverages: * * * Chapter 33, HTSUS, Note 2 states that: The expression “odiferous substances” in heading 3302 refers only to the substances of heading 3301, to odiferous constituents isolated from those substances or to synthetic aromatics. * * * In addition, in interpreting the HTSUS, the Explanatory Notes (“ENs”) of the Harmonized Commodity Description and Coding System may be utilized. The ENs to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). Chapter 4 General Note states that: This Chapter covers: (I) Dairy products: (A) Milk, i.e., full cream milk and partially or completely skimmed milk (B) Cream (C) Buttermilk, curdled milk and cream, yogurt, kephir and other fermented or acidified milk and cream (D) Whey (E) Products consisting of natural milk constituents, not elsewhere specified or included (F) Butter and other fats and oils, derived from milk; dairy spreads (G) Cheese and curd The products mentioned at Items (A) to (E) above may contain, in addition to natural milk constituents (e.g., milk enriched in vitamins or mineral salts), small quantities of stabilizing agents which serve to maintain the natural consistency of the product during transport in liquid state (disodium phosphate, trisodium citrate and calcium chloride, for instance) as well as very small quantities of antioxidants or of vitamins not normally found in the product. Certain of these products may also contain small quantities of chemicals (e.g., sodium bicarbonate) necessary for their processing; products in the form of powder or granules may contain anticaking agents (for example, phospholipids, amorphous silicon dioxide). . . . The Chapter also excludes, inter alia, the following : (a) Food preparations based on dairy products (in particular, heading 19.01) . . . . * * * EN 19.01 states, in pertinent part, that: . . . (III) Food preparations of goods of headings 04.01 to 04.04, not containing cocoa or containing less than 5% by weight of cocoa calculated on a totally defatted basis, not elsewhere specified or included. The preparations of this heading may be distinguished from the products of headings 04.01 to 04.04 in that they contain, in addition to natural milk constituents, other ingredients not permitted in the products of those earlier headings. * * * EN 22.08 states, in pertinent part, that: This heading covers, whatever their alcoholic strength: Spirits produced by distilling wine, cider or other fermented beverages or fermented grain or other vegetable products, without adding flavoring; they retain, wholly or pa

Classification decisions under the HTSUS are made in accordance with the General Rules of Interpretation (“GRIs”).  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 2 through 6 may then be applied in order.  The 2023 HTSUS provisions under consideration are as follows:0402 Milk and cream, concentrated or containing added sugar or other sweetening matter:* * *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: 1901.90.61 Described in additional U.S. note 10 to chapter 4 and entered pursuant to its provisions 1901.90.62 Other (See subheadings 9904.04.50 – 9904.05.01)* * *2208 Undenatured ethyl alcohol of an alcoholic strength by volume of less than 80 percent by vol.; spirits, liqueurs and other spirituous beverages: 2208.90 Other:2208.90.80 Other* * *3302 Mixtures of odiferous substances and mixtures (including alcoholic solutions) with a basis of one or more of these substances, of a kind used as raw materials in industry; other preparations based on odiferous substances, of a kind used for the manufacture of beverages: * * *Chapter 33, HTSUS, Note 2 states that:The expression “odiferous substances” in heading 3302 refers only to the substances of heading 3301, to odiferous constituents isolated from those substances or to synthetic aromatics. * * * In addition, in interpreting the HTSUS, t