CLA-2 CO:R:C:G 081515 JGH
David O. Elliott, Esq.
Barnes, Richardson & Colburn
475 Park Avenue South
New York, New York 10016
RE: Classification of battered cheese products under the
Harmonized Tariff Schedule (HTS)
Dear Mr. Elliott:
This is in reference to your submissions on the
classification of battered cheese products from Canada.
FACTS:
The products are battered cheddar cheese balls or cubes
and battered mozzarella cheese sticks. The cheese balls are
said to be about one inch in diameter, 55.6 percent by weight
of batter and 44.4 percent by weight cheddar cheese. The
mozzarella sticks are said to be about 3 inches in length and
3/4 inch in diameter and to consist of 54.5 percent by weight
of batter and 45.5 percent by weight mozzarella cheese. A
Customs laboratory examination of samples of the products
described the cheese balls as consisting of 59 percent coating
by weight and 41 percent cheese, and the sticks to consist of
52.5 percent cheese and 47.5 percent coating. It is asserted
that the manufacturer is employing quality control measures to
insure that the batter content is more than 50 percent by
weight. The coating is said to consist of wheat flour, toasted
wheat crumbs, soya flour, corn flour, grated romano cheese,
seasonings, and preservatives. The products are said to be
wrapped in a "tempura-lite" batter and then oil blanched and
frozen. They are prepared by pan frying, deep frying or oven
baking. They will be imported in non-retail size packages for
sale to the institutional trade.
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ISSUE:
Whether the mozzarella sticks are classifiable as other
cheese containing cow's milk in subheading 0406.90.8060, HTS,
and the coated cheddar cheese balls as other cheddar cheese in
subheading 0406.90.1040, HTS, or whether the products are
classifiable as other food preparations, not elsewhere
specified or included: Containing over 5.5 percent by weight
of butterfat and not packaged for retail sale, in subheading
2106.90.40, HTS.
LAW AND ANALYSIS:
In support of classification of the battered cheese
products under the cheese provisions, it is argued that the
products, even though coated, are essentially cheese; that the
material which gives the product its dominant flavor is cheese.
Following (General Rules of Interpretation) GRI 2(b), it is
claimed the basic character, cheese, has not been changed by
the addition of batter. Under GRI 3(b), it is asserted, the
essential nature of the product may be determined by the nature
of the principal material or component, its quantity, bulk,
weight or value, and the role of the constituent material in
relation to the use of the goods. Heading 2106 HTS, would only
be considered in the event a more specific provision is not
available. Heading 0406.90, HTS, for cheese, it is felt, is
more specific and would apply to a cheese product such as this
whether or not combined with other ingredients.
It is your position that since the products are cheese
wrapped in "tempura-lite" seasoned batter, which is then oil
blanched and frozen, the result is an appetizer, hors d'oeuvres
or snack, which is cooked before consuming, that such a
processing creates a new product which is most specifically
described, following GRI 3(a), in subheading 2106.90.40, HTS,
as a food preparation containing over 5.5 percent by weight
butterfat. In the explanatory notes to 2106, you note, there
are examples of food preparations which include significant
amounts of dairy products, such as preparations based on butter
or other fats, or foodstuffs of flour sugar, milk powder, etc.
Another example cited is from the "Explanatory Notes to the
Combined Nomenclature of the European Community", in which
cheese fondues are mentioned. They are described as a core of
cheese surrounded by bread crumbs and were considered as food
preparations. Therefore, subheading 2106.90.40 is said to be
the most specific provision for these battered cheese products.
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The products are essentially bite-size snack foods and
therefore can be readily distinguished from the larger cheese
products such as cheese balls which are seasoned. In fact, the
explanatory notes to heading 0406 mentions that the presence of
meat, spices, vegetables, fruit, nuts, vitamins, skimmed milk
powder etc., does not affect classification provided that the
goods retain the character of cheese. From the small size of
the products and the amount of coating each product has, it is
not believed that they contain commercially extractable
butterfat.
Customs has previously considered the classification of a
cheese product similar to these. In ruling 014958 of May 17,
1972, the issue was the classification of "cheese footballs,"
described as small spherical cheese-filled biscuits/cookies.
The products were classified as edible preparations in item
182.95, TSUS. They were not subject to quota restraints, since
the butterfat content was not felt to be commercially
extractable and as finished articles they were not considered
suitable for use as ingredients in the commercial production of
other edible articles.
Another factor considered by Customs in the classification
of products such as this, is the thickness of the coating. In
Hilo Rice Mill Co., Ltd., American Customs Brokerage Company v.
United States, C.A.D. 866, the classification of coated peanuts
was considered. The court noted the coating appeared to be the
thickness of the diameter of the peanut. The product was
classifiable as a baked good, rather than as peanuts. In
contrast, in another case, peanuts with thin, brittle coatings
were still considered as peanuts for classification purposes.
In arguing that the products are cheese, it is apparently
believed that a distinction may be drawn between such earlier
decisions and the current issues brought under the HTS, because
of new concepts such as"essential character." Under the GRIs
the first two rules concern the classification of merchandise
according to the applicable HTS headings. It is therefore
contended that the provisions for cheese provide for a product
such as this. However, these battered cheese products are
something more than a seasoned cheese. In view of the method
in which the battered cheese products are produced, they are
not merely mixtures but are more accurately described as
"preparations for use, either directly or after processing
(such as by cooking, dissolving, boiling in water, milk, etc.)
for human consumption", as described in the explanatory notes
for 2106, HTS.
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HOLDING:
Battered cheese products, bite-size snack foods, which are
processed food products consisting of a small amount of cheese
covered with a batter which is thicker by weight than the
cheese component and which do not contain any extractable
butterfat and are not suitable for use as ingredients in the
commercial production of edible articles, are classifiable
under the provision for other food preparations not elsewhere
specified or included: containing over 5.5 percent by weight of
butterfat and not packaged for retail sale, in subheading
2106.90.40, HTS. The rate of duty is 16 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division
6cc: Area Director, New York Seaport
JGHurley:jaj:2/27/89