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HQ 088827


September 13, 1991

CLA-2 CO:R:C:F 088827 EAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 1901.90.3030

Russell W. MacKechnie, Jr., Esquire
Donohue and Donohue
26 Broadway, Suite 1111
New York, New York 10004

RE: Classification of goods of headings 0401 to 0404

Dear Mr. MacKechnie:

This is in reply to your letter dated February 5, 1991, on behalf of Westland Kaasexport B.V., in which you request a bind- ing ruling on the classification of food products under the Har- monized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The subject products are food preparations made from cow's milk. One product in the form of a ten pound cylindrical wheel has been made by the same basic procedures used to manufacture Gouda cheese. It has the same fat and moisture content as Gouda cheese, but for the fact that all butyric fat has been removed and replaced by unspecified vegetable oil. The second product in the form of a four pound ball has been made by the same basic procedures used to manufacture Edam cheese. It has the same fat and moisture content as Edam cheese, but for the fact that all butyric fat has been removed and replaced by unspecified vegetable oil. To make the foods, following the removal of the butterfat and the addition of the oleic fat, a starter culture and rennet are added. Following coagulation, typical processing results in the final products. Each product has the same plastic body and close texture, with some scattered small openings, found in "natural" Gouda and Edam cheeses, respectively, i.e., Gouda and Edam cheeses containing butter- or milkfat.

You are of three alternative positions:

1. That the products should be classified under subheading 2106.90.60 as food preparations not elsewhere specified or included, dutiable at the rate of 10 percent ad valorem and not subject to any quota; or

2. That the products should be classified under subheading 1901.90.90 as food preparations of goods of headings 0401 to 0404, dutiable at the rate of 10 percent ad valorem and not subject to any quota; or

3. That the products should be classified under subheading 0406.90.80 as substitutes for cheese; other; containing cow's milk (except soft-ripened cow's milk).

ISSUE:

What is the proper HTSUSA classification of the subject products?

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) set forth the legal framework in which merchandise is to be classified under the HTSUSA. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's taken in order.

We note that the scope of the headings for various dairy products provided for in Chapter 4 has been limited by the Explanatory Notes to the HTSUSA, so as to exclude from the headings of that chapter products obtained from milk by replacing one or more of the natural constituents (e.g. butyric fats) with another substance (e.g. oleic fats). See General Explanatory Note (I)(c) to Chapter 4. Any such food "product" might be classified under either heading 1901 or 2106, id. You are of the opinion that "[T]he absence of butterfat and the inapplicability of the various quota subheadings arrayed under the heading render HTSUS subheading 2106.90.60999 the proper classification for Trenta [emphasis supplied]." Exactly to the contrary, it is the lack of butterfat that bars classification under heading 2106, HTSUSA; Explanatory Note 21.06(3) states, "[T]he heading includes * * * [P]reparations based on butter or other fats or oils derived from milk * * * [emphasis supplied]." As provided in Explanatory Note 04.04(c), food "preparations" based on natural milk constituents but containing other substances not allowed in the products of Chapter 4 are to be classified under heading 1901.

In consideration of the foregoing, we are of the opinion that the replacement of the natural milkfat with oleic fats requires that the subject goods be classified under heading 1901 as "food preparations of goods of headings 0401 to 0404 * * * not elsewhere specified or included."

We are of the additional opinion that heading 1901 more specifically provides for the subject food preparations in view of the clearly disqualifying language of chapter 4 Note (2); not having a milkfat content, by weight of the dry matter, of 5 percent or more, the goods cannot be considered cheese/s. Nor can they be classified as "substitutes for cheese", subheading 0406.90.8030, HTSUSA.

The product has been processed from a mixture of skim milk and vegetable oil, by means of fermentation and renneting, into a cheese substitute. The curd in this product is a milk curd, and it is the curd which imparts the "cheese-like" character. It is only the presence of the non-dairy vegetable oil which precludes classification as a cheese.

HOLDING:

The subject food preparations are properly classified in subheading 1901.90.3030, HTSUSA, which provides for food preparations of goods of headings 0401 to 0404, not elsewhere specified or included: Articles of milk or cream not specially provided for. Products so classified are subject to a duty of 17.5 percent ad valorem. In addition they are subject to the quota restraints of subheading 9904.10.60, HTSUSA, and an import license is required.

Sincerely,

John Durant, Director
Commercial Rulings Division

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