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NY M82231




May 15, 2006

CLA-2-04:RR:NC:2:231 M82231

CATEGORY: CLASSIFICATION

TARIFF NO.: 0406.10

Mr. Stephen W. Marlow
Manager, Regulatory Services
FedEx Trade Networks
Transport & Brokerage, Inc.
205 West Service Road
Champlain, NY 12919

RE: The tariff classification of three dairy products from Canada

Dear Mr. Marlow:

In your letter dated April 5, 2006, you requested a tariff classification ruling on behalf of your client, Skotidakis Goat Farm, Inc.

The goods in question consist of three Skotidakis brand dairy products, described as Feta Cheese, Ricotta Cheese and Tzatziki.

Feta Cheese, made with cow’s milk, is said to contain 25 percent butterfat, as-is basis (55.5 percent butterfat, dry basis) and 55 percent moisture. A sample of the cheese, a white rectangular block, was packaged in brine in a white plastic container holding 1 kilogram, net weight. On the product label, in small type in parentheses, below the name of the cheese, is the phrase “soft ripened cheese.”

The Ricotta Cheese is a soft, white cheese made from pasteurized goat’s milk, modified cow’s and goat’s milk ingredients, salt and acidic acid. The cheese contains 14 percent by weight of butterfat and 70 percent moisture. The product is said to be manufactured from 80 percent goat’s milk and 20 percent by weight of cow's milk whey and goat’s milk whey. A sample, in the form of a rectangular loaf, was presented in a heat-sealed plastic wrap. This Ricotta Cheese is classifiable as a fresh cheese in subheading 0406.10, Harmonized Tariff Schedule of the United States (HTSUS). Because it contains cow’s milk whey, it will be classified under the Tariff Rate Quota for other fresh cheese.

You state in your letter that your client believes that Feta Cheese, made from cow’s milk, is classifiable as a soft-ripened cow’s milk cheese. We would disagree. Traditional cow’s milk soft-ripened cheeses, after being formed in the loaf, are seeded on their exterior surface with a typical mold (e.g., Penicillium camemberti, P. caseicolum, P. candidum). The cheese is held to allow this mold to establish itself as a prominant white crust on the cheese surface. By contrast, in Feta Cheese production, no mold spores, yeasts or other biological curing agents are applied to the exterior surface of the cheese nor does any visible crust develop. After forming into a loaf, Feta Cheese is generally placed into a brine solution for salting and, not uncommonly, it is shipped packed in brine to market. Feta cheese does not visibly ripen from the surface toward the center, as required by additional U.S. note 3 to Chapter 4, HTSUS, and the shelf life of this product, at 8 months, significantly exceeds that of traditional soft-ripening varieties. Accordingly, Feta Cheese is not classifiable as “soft ripened cow’s milk cheese,” as that product is defined in the additional U.S. note 3.

The applicable subheading for the cow’s milk Feta Cheese and the Ricotta Cheese containing cow’s milk whey, if entered under a license issued by the U.S. Department of Agriculture, will be 0406.10.8400, Harmonized Tariff Schedule of the United States (HTSUS), which provides for fresh (unripened or uncured) cheese, including whey cheese, and curd: other, other, other, other cheese and substitutes for cheese 9except cheese not containing cow’s milk, and soft ripened cow’s milk cheese): described in additional U.S. note 16 to this chapter and entered pursuant to its provisions. The rate of duty will be 10 percent ad valorem.

Imports under subheading 0406.10.8400, HTSUS, require import licenses, in accordance with terms and conditions provided in regulations issued by the Secretary of Agriculture, 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.

The applicable subheading for the cow’s milk Feta Cheese and the Ricotta Cheese containing cow’s milk whey, if entered without a license, will be 0406.10.8800, Harmonized Tariff Schedule of the United States (HTSUS), which provides for fresh (unripened or uncured) cheese, including whey cheese, and curd: other, other, other, other cheese and substitutes for cheese 9except cheese not containing cow’s milk, and soft ripened cow’s milk cheese), other. The rate of duty will be $1.509 per kilogram.

Cheese that is entered in subheading 0406.10.8800, HTSUS, may be subject to additional safeguard duties, as provided in Subchapter IV of Chapter 99, in subheadings 9904.06.38-9904.06.49, HTSUS. Except that U.S. Note 1 to Subchapter IV states that “[g]oods of the following countries imported into the United States shall not be subject to any of the provisions, duties or limitations of this subchapter: Canada, Mexico, Jordan, Singapore, Chile, Australia, Morocco.”

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.

We are returning your request for a ruling on the Tzatziki. We need additional information in order to issue a ruling. Please submit the information described below:

(1) A component weight breakdown, identifying each ingredient (on a percent by weight basis) added to make the product,--i.e., the fermented milk, cucumber, garlic, canola oil and salt.

(2) A description (flow chart) of the manufacturing process, showing each step and indicating when each ingredient is added to the product.

If you decide to resubmit your request, please include all of the material that we have returned to you and mail your request to U.S. Customs and Border Protection, Customs Information Exchange, 10th Floor, One Penn Plaza, New York, NY 10119, attn: Binding Rulings Section

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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