The tariff classification of dessert products from Italy

N204759 March 6, 2012 CLA-2-19:OT:RR:NC:2:228 CATEGORY: Classification TARIFF NO.: 1901.90.4200; 1901.90.4300 Mr. James DeLaurentis Vice President - License Emmi USA Inc. 100 Dutch Hill Road Orangeburg, NY 10962 RE: The tariff classification of dessert products from Italy Dear Mr. DeLaurentis: In your letter dated February 10, 2012, you requested a tariff classification ruling. A production flow chart, ingredients breakdowns, pictures of the products with indications of each component, and four samples were submitted with your letter. Two samples, Coffee Sundae and Chocolate Sundae, received in damaged condition (the products melted, and each component was indistinguishable from each other), were open and disposed of. The other two samples, received in thawed condition, were examined and disposed of. Panna Cotta products, presented in two flavors – caramel and chocolate, are dairy-based desserts, composed of sauce and panna cotta cream, packed in clear plastic cups weighing 120 grams, sealed, for retail sale, two cups each in a cardboard sleeve. The products are produced by filling the caramel sauce or chocolate sauce at the bottom of the cup, topping the panna cotta cream, thermo-sealing, packaging and freezing. The products will be imported in a frozen condition, but all must be thawed prior to eating. The pictures suggest placing the products on the plates upside down as such the sauces will be on the top of the panna cotta cream before consuming. Ingredients common to both products are approximately 30-31 percent cream, 27 percent water, 20-25 percent glucose syrup, 6-7 percent skim milk powder, 4-5 percent sugar, 3-4 percent sorbitol syrup, 1 percent alcohol, less than one percent each of tapioca starch, agar-agar, tara gum, xanthan gum, corn starch, mono- and diglycerides of fatty acids and artificial flavor. Depending on flavor, other ingredients include approximately 6 percent caramel, and less than one percent, each, cocoa, reduced fat cocoa, chocolate and salt. The applicable subheading for the Caramel Panna Cotta and Chocolate Panna Cotta if imported in quantities that fall within the limits described in additional U.S. note 10 to chapter 4, will be 1901.90.4200, Harmonized Tariff Schedule of the United States (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 … 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. The 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, HTSUS, and dutiable at the rate of $1.035 per kilogram plus 13.6 percent ad valorem. In addition, products classified in subheading 1901.90.4300, HTSUS, will be subject to additional duties based on their value, as described in subheadings 9904.04.67 to 9904.04.74, HTSUS Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at http://www.usitc.gov/tata/hts/. This merchandise is subject to The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (The Bioterrorism Act), which is regulated by the Food and Drug Administration (FDA). Information on the Bioterrorism Act can be obtained by calling FDA at 301-575-0156, or at the Web site www.fda.gov/oc/bioterrorism/bioact.html. Your inquiry does not provide enough information for us to give a classification ruling on the Coffee Sundae and Chocolate Sundae. As noted above, the samples of these two products were received in damaged condition and could not be examined. If you would like ruling on these products, please submit another sample for each product. When this information is available, you may wish to consider resubmission of your request. Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), provides, in general, that all articles of foreign origin imported into the United States must be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or its container) will permit, in such a manner as to indicate the English name of the country of origin to an ultimate purchaser in the United States. The implementing regulations to 19 U.S.C. 1304 are set forth in Part 134, Customs Regulations (19 CFR Part 134). The samples you submitted do not appear to be properly marked with the country of origin. You may wish to discuss the matter of country of origin marking with the Customs Import Specialist at the proposed port of entry. 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 Bruce N. Hadley, Jr. at (646) 733-3029. Sincerely, Thomas J. Russo Director National Commodity Specialist Division