CLA-2 CO:R:C:F 950579 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 October 25, 1991, on
behalf of Westland Kaasexport B.V., in which you request
reconsideration of HRL 088827 (September 13, 1991), classifying
certain food products under the Harmonized 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.
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.
Heading 1901, HTSUSA, describes in part "food preparations
of goods of headings 0401 to 0404, * * * not elsewhere specified
or included." The products at issue are, in fact, "food" that
has been "prepared" in a traditional cheese making process that
started with milk, a "good" of heading 0401, HTSUSA, from which
all butterfat was removed and for which vegetable oil was
substituted. Since heading 2106 describes "food preparations not
elsewhere specified or included [emphasis added]," we continue to
be of the opinion that the subject merchandise falls to be
classified under heading 1901, HTSUSA.
Quota subheading 9904.10.60 excepts products covered under
subheading 0403.90.80, fermented milk, from the limitations
thereof. From the processing described in the original
submission under HRL 088827, supra, and the description provided
in this request for reconsideration thereof, we find that the
noted exception is not applicable due to the fact that the
preparations are not articles based on fermented milk - it is
only after the vegetable oil has been mixed with the milk that a
starter culture and rennet are added. Also excepted from the
foregoing quota would be articles of subheading 1901.90.30, which
contain butterfat of more than 5.5% by weight. Since all
butterfat is removed in the processing of the subject food
preparations, the goods are not excepted from the quota, even
though, we are of the opinion, they fall to be classified under
subheading 1901.90.30, HTSUSA.
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