CLA-2 CO:R:C:F 088827 EAB
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 February 5, 1991, on
behalf of Westland Kaasexport B.V., in which you request a bind-
ing ruling on the classification of food products under the Har-
monized 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.
You are of three alternative positions:
1. That the products should be classified under subheading
2106.90.60 as food preparations not elsewhere specified
or included, dutiable at the rate of 10 percent ad
valorem and not subject to any quota; or
2. That the products should be classified under subheading
1901.90.90 as food preparations of goods of headings
0401 to 0404, dutiable at the rate of 10 percent ad
valorem and not subject to any quota; or
3. That the products should be classified under subheading
0406.90.80 as substitutes for cheese; other; containing
cow's milk (except soft-ripened cow's milk).
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.
We note that the scope of the headings for various dairy
products provided for in Chapter 4 has been limited by the
Explanatory Notes to the HTSUSA, so as to exclude from the
headings of that chapter products obtained from milk by replacing
one or more of the natural constituents (e.g. butyric fats) with
another substance (e.g. oleic fats). See General Explanatory Note
(I)(c) to Chapter 4. Any such food "product" might be classified
under either heading 1901 or 2106, id. You are of the opinion
that "[T]he absence of butterfat and the inapplicability of the
various quota subheadings arrayed under the heading render HTSUS
subheading 2106.90.60999 the proper classification for Trenta
[emphasis supplied]." Exactly to the contrary, it is the lack of
butterfat that bars classification under heading 2106, HTSUSA;
Explanatory Note 21.06(3) states, "[T]he heading includes * * *
[P]reparations based on butter or other fats or oils derived from
milk * * * [emphasis supplied]." As provided in Explanatory Note
04.04(c), food "preparations" based on natural milk constituents
but containing other substances not allowed in the products of
Chapter 4 are to be classified under heading 1901.
In consideration of the foregoing, we are of the opinion
that the replacement of the natural milkfat with oleic fats
requires that the subject goods be classified under heading 1901
as "food preparations of goods of headings 0401 to 0404 * * * not
elsewhere specified or included."
We are of the additional opinion that heading 1901 more
specifically provides for the subject food preparations in view
of the clearly disqualifying language of chapter 4 Note (2); not
having a milkfat content, by weight of the dry matter, of 5
percent or more, the goods cannot be considered cheese/s. Nor
can they be classified as "substitutes for cheese", subheading
0406.90.8030, HTSUSA.
The product has been processed from a mixture of skim milk
and vegetable oil, by means of fermentation and renneting, into a
cheese substitute. The curd in this product is a milk curd, and
it is the curd which imparts the "cheese-like" character. It is
only the presence of the non-dairy vegetable oil which precludes
classification as a cheese.
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