HQ 084848
October 10,1989
CLA -2 CO:R:G 084848 JGH
Mr. Nolberto J. Munier
10-251 West 14th St.
North Vancouver, B.C.
Canada, V7M 1P4
RE: Dulce de leche
Dear Mr Munier:
Your letter of June 5, 1989, concerns the tariff
classification of Dulce de leche, a product of Argentina, under
the Harmonized Tariff Schedule of the United States (HTSUS).
This product was the subject of New York Ruling Letter (826624)
dated February 17, 1988.
FACTS:
Dulce de leche, a caramel spread, is said to consist of
57.78 percent sugar by weight and 42.22 percent milk by weight.
It is used as a dessert spread, a sweetener for coffee or tea,
and in similar uses.
ISSUE:
Whether Dulce de leche is classifiable under the
provision other food preparations of goods of headings 0401 to
0404, not containing cocoa powder or containing cocoa powder in
a proportion by weight of less than 10 percent, not elsewhere
specified or included, in subheading 1901.90.3040, HTSUS, and
subject to the quota restrictions of subheading 9904.10.60,
HTSUS, or under the provision for other food preparations not
elsewhere specified or included in subheading 2106.90.6097,
HTSUS.
-2-
LAW AND ANALYSIS:
In your letter you state that the name, "Dulce de leche,"
means something sweet or pleasing to the taste made of milk.
You feel that as the sweetness is the quality which provides
the flavor, the spread should be considered a sugar product for
classification purposes. The cost of the sugar is given as
$0.2529 per kilogram and the milk is said to be $ 0.2029 per
kilogram.
While it is true that under the prior tariff, the Tariff
Schedules of the United States, a product of this type was
classified on the basis of the component of chief value, under
the HTSUS this criteria is no longer used. Under the HTSUS,
classification of merchandise is governed by the General Rules
of Interpretation (GRI's). GRI 1 provides that classification
is determined first in accordance with the terms of the
headings and any relative Section or Chapter notes. The
Explanatory Notes, which should be consulted for guidance in
the interpretation of the provisions of the HTSUS, state that
heading 2106 applies if the product is not covered by any other
heading. Heading 1901 states that it includes food
preparations which contain goods of headings 0401 to 0404 (milk
and milk products). The notes point out that the preparations
of the heading contain in addition to natural milk
constituents, other ingredients, including products which may
be sweetened. Clearly, heading 1901 is more specific than 2106.
As you point out, there are a number of "Dulce" products,
and in this case it is milk which gives the product its flavor.
The language of heading 1901 describes this product, since it
is based on milk. Even though it may be in chief value of
sugar, no longer is this concept considered determinative for
tariff classification purposes, but rather, it is the component
which provides the predominant characteristic. Milk is the
ingredient which imparts the taste and consistency to the
spread. Indeed, without milk there would be no Dulce de leche.
-3-
HOLDING:
Dulce de leche is classifiable under the provision for
food preparations of goods of headings 0401 to 0404 in
subheading 1901.90.3040, HTSUS. The rate of duty is 17.5
percent ad valorem, and, in addition, it is subject to the
quota restrictions of subheading 9904.10.60, HTSUS.
Sincerely,
John Durant, Director
Commercial Rulings Division
6 cc: Area Dir., N.Y. Seaport
J. Hurley library/peh
084848