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NY L80282




February 28, 2005

CLA-2-04:RR:NC:2:231

CATEGORY: CLASSIFICATION

TARIFF NO.: 0405.20.2000/0405.20.3000

Mr. Melvin S. Drozen
Keller and Heckman LLP
1001 G Street, N.W.
Suite 500 West
Washington, D.C. 20001

RE: The tariff classification of a butterfat/condensed whey product from Ireland.

Dear Mr. Drozen:

In your letter dated October 18, 2004, you requested a tariff classification ruling for a butterfat/condensed whey product from Ireland.

The product in question, described as a “whey cheese,” consists of a mixture, predominantly of milk fat with a relatively small amount of condensed whey. You state that, while this product could be consumed ‘as-is’ by a consumer, its principle application is for use in the manufacture of other foods such as bakery items (cheese cake and the like) and process cheese products. A Laboratory Report, dated January 25, 2005, from the New York Laboratory, Laboratory and Scientific Services, Customs and Border Protection, described a sample of the product as an “yellow oily soft block, labeled ‘whey cheese’, “ that “in our opinion, is a water-in-oil type emulsion.” An organoleptic examination of the sample found it to be a soft, spreadable material with a bland, creamy taste similar to butter. In our opinion, because of the high fat content, this product is not suitable for direct consumption by a consumer but could be utilized, in place of butter, as a dairy spread or in cooking or baking. By virtue of its physical and organoleptic characteristics, the predominance of the butterfat component in the product, and its probable use as a butterfat ingredient in production of process cheese or in baked goods, we believe that this product has the essential character and commercial identity of a good of heading 0405, HTS, which provides for butter and other fats and oils derived from milk; dairy spreads. More specifically, based on the composition of the product, we would classify this product “dairy spread,” rather than as a “whey cheese” of heading 0406, HTS. The term “dairy spreads” are defined in note 2(b) to Chapter 4, as “a spreadable emulsion of the water-in-oil type, containing milkfat as the only fat in the product, with a milkfat content of 39 percent or more but less than 80 percent by weight.”

The applicable subheading for this whey/butterfat mixture will be 0405.20, Harmonized Tariff Schedule of the United States (HTS), which provides for butter and other fats and oils derived from milk, dairy spreads, butter substitutes, whether in liquid or solid state, containing over 45 percent by weight of butterfat. If imported with a dairy import license, issued by the U.S. Department of Agriculture covering such products, as described in additional U.S. note 14 to Chapter 4 and entered pursuant to its provisions, classification will be in subheading 0405.20.2000, HTS. The rate of duty will be 15.4 cents per kilo. If imported without a dairy import license, classification will be in subheading 0405.20.3000, HTS. The rate of duty will be $1.996 per kilogram.

Goods that are classified in subheading 0405.20.3000, HTS, may be subject to additional safeguard duties in subheadings 9904.05.37—9904.05.47, HTS.

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 Thomas P. Brady at 646-733-3030.

Sincerely,

Robert B. Swierupski
Director,

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