CLA-2-04:OT:RR:NC:N2:231
Ms. Barbara M. Carman
BCB International Inc.
1010 Niagara Street
Buffalo, NY 14213-1501
RE: The tariff classification of snack chips made of dried cheese, from Poland.
Dear Ms. Carman:
In your letter dated April 3, 2012, you requested a tariff classification ruling on behalf of Stan-Mark Food Products (Chicago, IL). In response to our request for additional information, you submitted a supplemental letter dated May 12, 2012.
You identify the goods in question as “crispy dry cheese snack chips” coated with a dry “pizza flavoring.” A sample submitted with your inquiry is a 20-gram retail bag containing numerous rectangular, cracker-like chips, each measuring approximately 3/4” wide by 1¾” long by 3/16” thick. Each chip consists of a slice of cheese that has been dehydrated and slightly puffed by a microwave/vacuum process, then lightly coated with a dry seasoning mixture composed of “pizza aroma,” dried tomato, oregano, basil, yeast extract, paprika and sugar. You indicate that the cheese represents 91%, by weight, of the finished chip, while the coating represents 9%. The fat content of the product is approximately 20%, and the moisture content is only 4%.
Based on information you provided by telephone and in your submissions, it is our understanding that the source cheese is a reduced-fat rennet cheese which does not represent any specific, recognized variety and which is currently produced exclusively for the manufacture of these chips. Its ingredients are pasteurized cow’s milk, salt, calcium chloride (stabilizer), lysosyme, cultures, enzymes and annatto. Before dehydration, the source cheese is said to have a moisture content of approximately 45% and a fat content of approximately 20% of the dry matter.
In your initial letter, you expressed the belief that the chips are not classifiable as cheese of heading 0406, Harmonized Tariff Schedule of the United States (HTSUS), because their dry-matter content exceeds the allowable range specified in Note 3 to chapter 4, HTSUS. We disagree. The cited Note pertains only to “whey cheeses,” which (in contrast to cheeses produced by the usual procedure that begins by coagulating milk) are made by concentrating whey. Since there is no indication that the product at issue is a whey cheese, Note 3 is not applicable.
Moreover, we would point out that it is not unusual for cheeses of chapter 4, HTSUS, to undergo intentional moisture reduction during their manufacture. For example, grated or powdered cheeses of subheading 0406.20, HTSUS, typically are produced in a way that results in moisture levels significantly below those of the source cheeses. Also of note is the fact that the Harmonized Commodity Description and Coding System Explanatory Notes, which represent the official interpretation of the Harmonized System at the international level, allow cheeses of heading 0406 to have been cooked and/or combined with spices, herbs, vegetables, etc.
Heading 0406, HTSUS, is an eo nomine provision for cheese and curd. An eo nomine provision, without limitation or a contrary legislative intent or judicial decision, will include all forms of the named article. See Sabritas, S.A. de C.V. and Frito-Lay, Inc. v. U.S., 998 F. Supp. 1123, 22 Ct. Int’l Trade 59 (1998).
The applicable subheading for the above-described “crispy dry cheese snack chips,” if imported under quota, will be 0406.90.9500, HTSUS, which provides for cheese and curd: other cheese: other cheeses, and substitutes for cheese, including mixtures of the above: other, including mixtures of the above (excluding goods containing mixtures of subheadings 0406.90.61 or 0406.90.63): other: other: containing cow’s milk (except soft-ripened cow’s milk cheese): described in additional U.S. note 16 to chapter 4 and entered pursuant to its provisions. The rate of duty will be 10% ad valorem.
Imports under subheading 0406.90.9500, HTSUS, require an import license, in accordance with terms and conditions provided in regulations issued by the Secretary of Agriculture, subject to the approval of the United States Trade Representative (USTR). The regulations may provide for the reallocation among supplying countries or areas of unfilled quantities, subject to USTR approval.
Questions regarding licensing procedures and applications for licenses to import cheese subject to quota should be addressed to:
Import Quota Manager for Dairy Products
U.S. Department of Agriculture (USDA)
Stop 1029
1400 Independence Avenue, SW
Washington, DC 20250-1029
Tel: (202) 720-1344
The applicable subheading for the cheese chips, if imported outside the quota (i.e., without a USDA cheese-import license), will be 0406.90.9700, HTSUS, which provides for cheese and curd: other cheese: other cheeses, and substitutes for cheese, including mixtures of the above: other, including mixtures of the above (excluding goods containing mixtures of subheadings 0406.90.61 or 0406.90.63): other: other: containing cow’s milk (except soft-ripened cow’s milk cheese): other. The rate of duty will be $1.509 per kilogram. Also, products classified in subheading 0406.90.9700, HTSUS, will be subject to additional safeguard duties based on their value, as described in subheadings 9904.06.38—9904.06.48.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
Importations of this merchandise are subject to regulations administered by various U.S. agencies. Requests for information regarding applicable regulations administered by the U.S. Department of Agriculture (USDA) may be addressed to that agency at the following location:
USDA
APHIS, VS, NCIE
Products Program
4700 River Road, Unit 40
Riverdale, MD 20737-1231
Tel: (301) 734-3277
This merchandise is subject to The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (The Bioterrorism Act), which is regulated by the Food and Drug Administration (FDA). Information on the Bioterrorism Act can be obtained by calling the FDA at 301-575-0156, or at the Web site www.fda.gov/oc/bioterrorism/bioact.html.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Nathan Rosenstein at (646) 733-3030.
Sincerely,
Thomas J. Russo
Director
National Commodity Specialist Division