HQ 0950579 - Classification of goods of headings 0401 to 0404 - United States International Trade Commision Rulings

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HQ 950579

March 26, 1992

CLA-2 CO:R:C:F 950579 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 October 25, 1991, on behalf of Westland Kaasexport B.V., in which you request reconsideration of HRL 088827 (September 13, 1991), classifying certain food products under the Harmonized 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.

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.

Heading 1901, HTSUSA, describes in part "food preparations of goods of headings 0401 to 0404, * * * not elsewhere specified or included." The products at issue are, in fact, "food" that has been "prepared" in a traditional cheese making process that started with milk, a "good" of heading 0401, HTSUSA, from which all butterfat was removed and for which vegetable oil was substituted. Since heading 2106 describes "food preparations not elsewhere specified or included [emphasis added]," we continue to be of the opinion that the subject merchandise falls to be classified under heading 1901, HTSUSA.

Quota subheading 9904.10.60 excepts products covered under subheading 0403.90.80, fermented milk, from the limitations thereof. From the processing described in the original submission under HRL 088827, supra, and the description provided in this request for reconsideration thereof, we find that the noted exception is not applicable due to the fact that the preparations are not articles based on fermented milk - it is only after the vegetable oil has been mixed with the milk that a starter culture and rennet are added. Also excepted from the foregoing quota would be articles of subheading 1901.90.30, which contain butterfat of more than 5.5% by weight. Since all butterfat is removed in the processing of the subject food preparations, the goods are not excepted from the quota, even though, we are of the opinion, they fall to be classified under subheading 1901.90.30, HTSUSA.

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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