The tariff classification of “drinkable yogurt” from Russia or Germany.

N220335 September 21, 2012 CLA-2-04:OT:RR:NC:N2:231 CATEGORY: Classification TARIFF NO.: 0403.90.8500 Ms. Sarah Brennan Commonwealth Dairy, LLC PO Box 6212 Brattleboro, VT 05302 RE: The tariff classification of “drinkable yogurt” from Russia or Germany. Dear Ms. Brennan: In your letter dated June 5, 2012, you requested a tariff classification ruling. Representative samples and a manufacturing flow chart accompanied your letter. The product in question is identified as “drinkable yogurt” that will be imported in single-serve (6- or 11.6-ounce) plastic bottles. It will be supplied in four different flavors: wildberry, apricot, melon/pineapple and strawberry. Based on the information you submitted, it appears that the product is made by fermenting a “milk base” (consisting of skim milk, cream, whey powder, skim milk powder and water) with “yogurt culture.” The specific type(s) of bacteria used in the culture were not identified. Sugar, glucose-fructose syrup, fruit juices (as flavoring agents), stabilizers/thickeners, citric acid, and beta carotene or carmine are added to the fermented base. (For the purposes of this ruling, it is assumed that no dairy ingredients or water are added to the product after fermentation.) One of the samples was examined and analyzed by the New York Customs and Border Protection Laboratory, which found the product to be a moderately viscous liquid. The lab’s analysis indicates that the non-fat milk solids content is about 8 percent (on an as-is basis). The titratable acidity (as lactic acid) was found to be 0.76 percent, which is noted to be lower than the minimum level indicated in the FDA’s standard of identity for yogurt. You have stated that the product has a milk fat content of 1.2 percent. The applicable subheading for the above-described “drinkable yogurt” will be 0403.90.8500, Harmonized Tariff Schedule of the United States (HTSUS), which provides for buttermilk, curdled milk and cream, yogurt, kephir and other fermented or acidified milk and cream, whether or not concentrated or containing added sugar or other sweetening matter or flavored or containing added fruit, nuts or cocoa: other: other: fermented milk other than dried fermented milk or other than dried milk with added lactic ferments. The rate of duty will be 17 percent ad valorem. 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 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. These goods may also be subject to requirements administered by the U.S. Department of Agriculture, Animal and Plant Health Division (APHIS). You may contact that agency regarding possible applicable regulations at the following location: U.S. Department of Agriculture APHIS, VS, NCIE Products Program 4700 River Road, Unit 40 Riverdale, MD 20737-1231 Telephone: (301) 734-3277 Website: www.aphis.usda.gov 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 Nathan Rosenstein at (646) 733-3030. Sincerely, Thomas J. Russo Director National Commodity Specialist Division