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HQ 964143




October 5, 2001

CLA-2 RR:CR:GC 964143 JGB

CATEGORY: CLASSIFICATION

TARIFF NO.: 0406.90.4100; 0406.90.4200

Port Director
Port of New York
C/o Chief, Residual Liquidation and Protest Branch U.S. Customs Service
1 Penn Plaza
New York, NY 10119

RE: Protest 1001-00-101410; "Zerto" Brand Reggianito Cheese

Dear Director:

This is a decision on Protest 1001-00-101410 against your decision in the classification of "Zerto" Brand Reggianito Cheese under the Harmonized Tariff Schedule of the United States (HTSUS). The entries, made in 1999, were liquidated during January 2000, and the protest timely filed on March 30, 2000.

FACTS:

The merchandise consists of "Zerto" Brand Reggianito Cheese made from Parmesan and Romano cheeses from Argentina that have been aged less than 10 months and 5 months, respectively. Both types of cheese are made from cow's milk and are Italian style cheeses.

You classified the cheese in subheading 0406.90.4100, HTSUS, the provision for "Cheeses and curd: Other cheese: Romano made from cow's milk, Reggiano, Parmesan, Provolone and Provoletti cheeses: Other: Made from cow's milk: Described in additional U.S. note 21 to this chapter and entered pursuant to its provisions."

The protestant claims that the merchandise is classified in heading 0406.10.5400, HTSUS, the provision for "Cheese and curd: Fresh (unripened or uncured) cheese, including whey cheese, and curd: Other: Other: Italian-type cheeses, made from cow's milk, in original loaves (Romano made from cow's milk, Reggiano, Parmesan, Provolone, Provoletti and Sbrinz); Italian-type cheeses, made from cow's milk, not in original loaves (Romano made from cow's milk, Reggiano, Parmesan, Provolone, Provoletti, Sbrinz and Goya), and cheese and substitutes for cheese containing, or processed from, such Italian-type cheeses, whether or not in original loaves: Described in additional U.S. Note 21 to this chapter and entered pursuant to its provisions .”

ISSUE:

Whether the Reggianito cheese is "cured or ripened" cheese for tariff purposes.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). 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 GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the Harmonized System at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI.

There is no dispute that the product is classified in heading 0406, HTSUS, providing for cheese or curd. Therefore, classification will be determined according GRI 6, which provides that:

For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.

To classify the product the claimed subheadings may be examined to determine their applicability. Subheading 0406.10 provides for "fresh (unripened or uncured) cheese." The product must meet this description or it must be classified in the subheading that accommodates "Other cheese," in this case, subheading 0406.90, HTSUS.

The protestant claims that the product must be classified in the provision for "unripened or uncured" cheese because it is composed of Parmesan and Romano cheese and the product has not met the curing requirements for those cheeses, being "not less than" 10 and 5 months, respectively, according to the U.S. Food and Drug Administration's Standards of Identity. See 21 CFR §133.165 (Parmesan) and 21 CFR §133.183 (Romano).

The protestant's website (www.atalanta1.com) describes the product in detail for sales purposes and indicates that it has an "AGE 5-6 months." This degree of aging is consistent with the Customs position that the cheese has been cured or ripened. During this curing period the combined actions of the bacteria, enzymes and molds operate on a cheese when proper conditions are maintained. Frandsen, ed., The Dairy Handbook and Dictionary. Nittany Printing and Publishing Co., State College, PA, (1958), 432. Textbook definitions indicate that in the trade, the definition of "cured" is broad and not confined to the narrow scope of the FDA's Standard of Identity. See Kosikowski, Cheese and Fermented Milk Foods, Edwards Brothers, Ann Arbor, MI (1977), 432 and 107, the subchapter entitled "Ripening, Curing, or Maturing Cheese." Therefore, Customs maintains its position that the instant product is aged, ripened, and cured and ineligible for classification in subheading 0406.10.5400, HTSUS, as "Fresh (unripened and uncured) cheese."

With respect to the FDA standards, Customs has "repeatedly ruled that the standards of identity promulgated for purposes other than tariff classification are not binding . . . in classifying imported merchandise." Bureau [of Customs] letter, TC 452.53 T, issued in 1968. The effect of the components of the instant product not meeting the FDA standard is that the resultant product may not be marketed as meeting those standards and that they are something other than Parmesan or Romano. The failure to meet the standard does not convert the cheeses into uncured or unripened cheese. Moreover, the instant cheese is not being offered to the public as an unripened or uncured cheese. It is being offered, in the words of the website designation, as an "alternative to its more expensive Italian cousins." The correct classification for the product is in subheading 0406.90.4100 or 0406.90.4200, HTSUS, depending on whether in or out of quota. This classification is consistent with Headquarters Ruling Letter 957175, dated July 11, 1995, in which a "Regianitto" cheese from Argentina with similar characteristics was classified in subheading 0406.90.4100, HTSUS.

HOLDING:

The protest should be denied.

If the product is entered under the quota, it is classifiable under subheading 0406.90.4100, HTSUS. If entered outside the quota, it is classified under subheading 0406.90.4200, HTSUS and is subject to additional safeguard duties listed in subheadings 9904.05.95 through 9904.06.05. HTSUS. Imports under provision 0406.90.4100, HTSUS, require import licenses, in accordance with terms and conditions provided in regulations issued by the Secretary of Agriculture and subject to the approval of the United States Trade Representative (USTR). The regulations may provide for the reallocation among supplying countries or areas of unfilled quantities, subject to USTR approval.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division

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