CLA-2 RR:CR:GC 955826
Robert L. Felice, Esq.
Felice & Basic
Attorneys at Law
225 Broadway, Suite 500
New York, New York 10007
RE: Internal Advice 58/93; Pecorino Romano Cheese; Original Loaves
Dear Mr. Felice:
This is in response to your request of May 21, 1993, to the Port Director, Los Angeles, for Internal Advice, under section 177.11 of the Customs Regulations, concerning the classification of shipments of Pecorino Romano Cheese. In your request, you referred to New York Ruling Letter (NYRL) 832164, dated December 5, 1988, to support your position that the shipments of cheeses are classified as other cheeses made from sheep's milk, in original loaves and suitable for grating, in subheading 0406.90.50, Harmonized Tariff Schedule of the United States (HTSUS), with a 1992 and 1993 general free rate of duty. After consideration of your initial submission as well as your supplemental letters, we are of the opinion that NYRL 832164 no longer reflects the views of the Customs Service.
This letter is to inform you that Custom is revoking NYRL 832164, in accordance with section 177.9(d) of the Customs Regulations (19 CFR 177.9(d)). Pursuant to section 625, Tariff Act of 1930 (19 U.S.C. 1625), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993) (hereinafter, section 625), notice of the proposed revocation of NYRL 832164 was published on March 4, 1998, in the Customs Bulletin, in Volume 32, No. 9. The following represents our position.
FACTS:
The request for advice concerns nine consumption entries for Pecorino Romano Cheeses. The request made by Masson Cheese Corporation states that cheeses made in Italy from sheep's milk in the form of loaves are cut into one inch cubes, and then vacuum packed in 18 kilogram cryovac bags under high pressure (to protect the integrity of the cheeses and to retard the growth of mold). The cheeses are shipped to Holland and then imported into the United States. A further submission dated April 28, 1994, contained a certified statement from an employee of the importer that for the past six years all of the cubed Pecorino Romano Cheeses are grated and not sold in cubed form.
As the result of a meeting with you on June 16, 1995, a further submission was received dated October 13, 1995, containing a letter from the shipper in Holland, dated November 8, 1995, and a letter from the producer in Italy, dated September 28, 1995. They state that the cheeses involved were loaves aged over two years that were mixed with loaves that were aged just over eight months, all of which were cut into one inch cubes for the 1992 and 1993 shipments in accordance with NYRL 832164, dated December 5, 1988.
The importer is of the opinion that the shipments of cheeses meet the requirements of NYRL 832164, which held that a mixture of whole loaves of Pecorino Romano cheeses aged two years or more and whole loaves of Pecorino Romano cheeses aged eight months to twelve months, that are cut into one inch cubes, that are vacuum packed in cryovac bags, and that are imported for grating, were classified in subheading 0406.90.50, HTSUS (redesignated as 0406.90.56 since 1995), as cheeses made from sheep's milk, in original loaves and suitable for grating. The importer notes that the cheeses may become broken in transit. The shipper from Holland stated that it is "natural that the cubes from the aged cheese crumble because of the fact that the aged cheeses are very dry". The Italian producer of the cheeses stated that "during the cutting process it is common for the aged cheese to crumble and thus almost impossible to fill bags with 18 Kilos of cubes exactly the same size and shape".
A photograph purporting to be of a sample shipment depicts cheeses in blocks which appear to be greater than one inch cubes packed in 18 kilogram bags.
A Customs Laboratory Report at the Port of Los Angeles dated June 9, 1993, describes a sample shipment as "cheese varying from fine crumbs to large rectangular-shape pieces distributed
uniformly throughout". Based on the report, Port Officials concluded that although the pieces may be suitable for grating, the pieces were not of uniform sizes and cannot be reassembled into original loaves and thus the integrity of the loaves was not maintained. The entries were advanced for classification as other cheeses made from sheep's milk not in original loaves, in subheading 0406.90.60, HTSUS (redesignated as 0406.90.59 since 1995), with a 1992 and 1993 general rate of duty at 15 percent ad valorem. Subsequent to the request for internal advice, the entries were liquidated as advanced, protests were filed, and the protests were placed in suspense status pending receipt of the decision requested under the internal advice procedures.
We conclude that in the present situation, it is a question of fact as to whether the imported cheeses as described were "in original loaves" in conformity with NYRL 832164. Customs examination of the shipments could not confirm that they constituted whole loaves. However, you have provided letters from the foreign shipper and the foreign processor stating that the shipments consisted of whole loaves that were cut to meet the requirements of NYRL 832164. Based on this evidence, the pending protests should be allowed. However, we believe NRYL 832164 to be in error and should be revoked in accordance with 19 U.S.C. 1625.
ISSUE:
Whether the mixed loaves of aged cheeses described above cut into one inch cubes and packaged together meets the requirements of NYRL 832164.
Whether the processing of cheeses as described in NYRL 832164 meets the classification requirements for "original loaves" of cheeses as that term is used in the HTSUS.
LAW AND ANALYSIS:
BACKGROUND FOR NYRL 832164
A Presidential Proclamation dated June 8, 1953, as reported in Treasury Decision 53289, set a quota for certain types of cheeses, including Italian-type cheeses made from cow's milk in original loaves. Although the quota is no longer in effect, other provisions in the former Tariff Schedules of the United States for cheeses in original loaves were carried over into HTSUS. Cheeses made from sheep's milk are provided for in the 1998 HTSUS as follows:
Subheading 0406.90.56, in original loaves and suitable for grating ........................... Free general rate
Subheading 0406.90.57, Pecorino, in original loaves, not suitable for grating .............. Free general rate
Subheading 0406.90.59, other, not in original loaves .......... general rate of 11.4 percent ad valorem
Administrative rulings, presumedly to curtail an effort to avoid the license requirements for importation and the quota, followed the Proclamation and interpreted the meaning of the term "in original loaves" and the question of whether cheeses in the form of half-loaves, quarter-loaves, wedges, pieces, or similar portions of the original loaves constituted "in original loaves" as that term is used in the tariff.
The leading administrative ruling concerning the term "in original loaves" is Customs Information Exchange (C.I.E.) 284/55, dated March 15, 1955, concerning cheeses made from cow's milk. The ruling held that a loaf cut in half, the cut ends waxed, and shipped in a single crate, that a loaf cut into four portions, the cut ends waxed, with wooden partitions inserted between the cut parts and shipped in a single crate, and that loaves of 25 pounds with end portions of approximately 3 or 4 pounds that have been cut and the ends waxed, were "entireties" for tariff purposes and constituted as "cheese in original loaves".
C.I.E. 284/55 was followed by C.I.E. 1126/60 dated August 5, 1960, Treasury Decision 55193(4), which held that a loaf of blue cheese cut into 24 equal parts of 4 ounces each retaining the mass of the loaf and the whole is then wrapped in one large piece of foil, constituted an original loaf. In a similar situation where the 24 equal parts of 4 ounces each were individually wrapped, it was held not to constitute an original loaf. (NYRL 841803, dated June 15, 1989, cited C.I.E. 1126/60, in denying classification as original loaves where the wedged parts were individually wrapped.)
NYRL 832164, dated December 5, 1988, held that a mixture of whole loaves of different aged Pecorino Romano cheeses which were cleaned for mold growth, and cut into one inch cubes and packed in bags of approximately 18 kilograms, were in original loaves. However, it was presumed that the integrity, as in the prior rulings, of the whole loaves would be maintained. It now appears, both from a sampling of importations of such merchandise that the cutting, mixing, handling, and packaging of this product causes a breakdown in the integrity of the one inch cubes so that the importations contain a significant amount of crumbs and pieces of cheese in non-uniform shapes and sizes. We are advised that it is natural for cubes of aged cheeses to become broken up and crumble because aged cheeses are very dry.
We conclude, that the mixture of loaves of different aged cheeses as described, that are cut in one inch cubes, do not retain the integrity of original loaves, and, even if the cubes were cut from original loaves, are not properly considered "in original loaves" for tariff classification purposes. Accordingly, the Customs Service is revoking NYRL 832164, dated December 5, 1988.
HOLDINGS:
A shipment of a mixture of different aged loaves of Pecorino Romano cheeses made from sheep's milk, that have been cut in one inch cubes, and packaged together so that the integrity of the individual original loaves cannot be maintained, are classified as other cheeses from sheep's milk, not in original loaves, in subheading 0406.90.59, HTSUS, with a 1998 duty at the general rate 11.4 percent ad valorem.
NYRL 832164, dated December 5, 1988, is revoked.
In accordance with 19 U.S.C. 1625, this ruling will become effective 60 days after its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to 19 U.S.C. 1625 does not constitute a change of practice or position in accordance with section 177.10(c)(1), of the Customs Regulations (19 CFR 177.10(c)(1)).
Sincerely,
John Durant, Director
Commercial Rulings Division
Office of Regulations and Rulings