HQ 960789
CLA-2 RR:CR:GC 960789 ptl
Mr. Fred East
Swiss Rose International, Inc.
14 Empire Boulevard
Moonachie, NJ 07074
RE: Reconsideration of New York Ruling Letter (NYRL) B86628;
"Fromaghurt".
Dear Mr. East:
This is in reference to to your letter of June 30, 1997,
requesting reconsideration of NYRL B86628, issued to you on June
19, 1997, in which Customs determined
that "Fromaghurt" was classifiable under subheading
0406.30.8100/8300, Harmonized Tariff Schedule of the United
States (HTSUS), which provides for cheese and curd, processed
(process) cheese, not grated or powdered, other, including
mixtures of the above, other, containing, or processed from,
Swiss, Emmentaler or Gruyere-process cheeses, described in
Additional U.S. Note 22 to chapter 4, HTSUS, and entered pursuant
to its provisions. You believe the product is classifiable under
subheading 0406.30.5100, HTSUS, which provides for processed
(process) cheese, not grated or powdered, gruyere-process cheese,
described in Additional U.S. Note 22 to chapter 4, HTSUS, and
entered pursuant to its provisions.
FACTS:
The subject merchandise is identified as "Fromaghurt". This
is a processed Swiss cheese to which yogurt and water, butter,
yoghurt powder, emulsifying salts (Sodium and potassium
orthophosphates, citric acid), sugar, salt, thickener and
possibly Proven‡ale spice mix and Proven‡ale herbs have been
added. The product will be imported in two flavors, plain (with
yogurt) and Proven‡ale (with yogurt and Proven‡ale herbs). In
both instances, the product will be imported in 5¬ oz. cartons.
ISSUE:
What is the proper classification of "Fromaghurt," a product
which is a mixture of process Swiss cheese and yoghurt?
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff
Schedule of the United States (HTSUS) in accordance with the
General Rules of Interpretation (GRIs). The systematic detail of
the HTSUS is such that virtually all goods are classified by
application of GRI 1, that is, according to the terms of the
headings of the tariff schedule and any relative Section or
Chapter Notes. In the event that the goods cannot be classified
solely on the basis of GRI 1, and if the headings and legal notes
do not otherwise require, the remaining GRIs may then be applied
in order. In understanding the language of the HTSUS, the
Harmonized Commodity Description and Coding System Explanatory
Notes may be utilized. The Explanatory Notes (ENs), although not
dispositive or legally binding, provide a commentary on the scope
of each heading of the HTSUS, and are generally indicative of the
proper interpretation of these headings. See T.D. 89-80, 54 Fed.
Reg. 35127, 35128 (August 23, 1989).
The product is a mixture of Swiss cheese, yoghurt and other
ingredients. To prepare the product, the Swiss cheese is
processed. The product clearly should be classified in heading
0406.30. The EN's to 0406.30 indicate that the heading covers:
(3) [p]rocessed cheese, also known as process cheese. It is
manufactured by comminuting, mixing, melting and emulsifying,
with the aid of heat and emulsifying or acidifying agents
(including melting salts), one or more varieties of cheese and
one or more of the following: cream or other dairy products,
salt, spices, flavoring, colouring and water.
The subheadings under consideration are as follows:
0406 Cheese and curd
0406.30 Processed (process) cheese, not grated or
powdered:
0406.30.5100 Gruyere-process cheese:
Described in additional U.S. note 22 to
this chapter and entered pursuant to its
provisions. ... 6.4 percent ad valorem
* * * * *
0406.30. Other, including mixtures of the above:
Other:
0406.30.8100 Containing, or processed from,
Swiss, Emmentaler or Gruyere-process cheeses:
Described in additional U.S.
note 22 to this chapter and
entered pursuant to its
provisions. ... 10 percent ad
valorem.
GRI 1 specifically states that classification shall be
determined by the terms of the headings. The drafters of the
HTSUS have made their intentions clear. In subheadings
0406.10.6400, 0406.20.8100 and 0406.30.8100, the drafters have
listed the types of cheese covered as "Swiss," "Emmentaler," and
"Gruyere-process." However, in subheading 0406.30.5100, the only
type of cheese listed is "Gruyere-process." A review of previous
editions of the HTSUS shows a consistent exclusion of "Swiss" and
"Emmentaler" from this particular subheading over the years.
Thus, this omission cannot be considered accidental. In spite of
the fact that the three types of cheese are all in the same
"family," where the headings are specific, Customs cannot place
an article where it has been excluded.
We note your comment that the subject product does not fall
into subheading 0406.30.8100/8300 because it is not a mixture of
cheeses. However, the phrase "including mixtures of the above"
is set off by commas. As such, the phrase is not a requirement
that there be a mixture of cheeses to be included in that
subheading, but a permissive inclusion of mixtures of cheeses in
that subheading.
HOLDING:
"Fromaghurt" is properly classified under subheading
0406.30.8100/8300, HTSUS, which provides for cheese and curd,
processed (process) cheese, not grated or powdered, other,
including mixtures of the above, other, containing, or processed
from, Swiss, Emmentaler or Gruyere-process cheeses: described in
Additional U.S. Note 22 to Chapter 4, HTSUS, and entered pursuant
to its provisions. The rate of duty will be 10 percent ad
valorem. If the quantitative limits of Additional U.S. Note 22
to Chapter 4, HTSUS, have been reached, the product will be
classified in subheading 0406.30.8300, HTSUS, and will be
dutiable at US $1.509 per kilogram. In addition, products
classified in subheading 0406.30.8300, HTSUS, will be subject to
additional duties based on their value, as described in
subheadings 9904.06.19 - 9904.06.28, HTSUS.
An import license, issued to you by the U. S. Department of
Agriculture, will be required at the time this merchandise is
entered for consumption into the United States.
NY B86628, issued June 19, 1997, is affirmed.
Sincerely,
John Durant, Director
Commercial Rulings Division