CLA-2-04:RR:NC:2:231 D89139
Mr. Julian Heron, Esq.
Tuttle, Taylor, and Heron
1025 Thomas Jefferson Street, NW, Suite 407 West
Washington, DC 20007-5201
RE: The tariff classification of semi-soft, enzyme modified cheese ingredient from France.
Dear Mr. Heron:
In your letter, dated March 8, 1999, you have requested a tariff classification ruling on behalf of your client, Schreiber Foods, Inc., Green Bay, WI.
The product in question is described as a "semi-soft, enzyme modified cheese ingredient." A sample of this "cheese ingredient" consisted of a pale, yellow, semi-soft substance with a smooth texture and sweet, creamy taste. The product is said to be made, first, by separating skim milk and cream from pasteurized milk. The skim milk is ultra filtrated to produce milk protein concentrate. The milk protein concentrate is then added to the cream to form a mixture with approximately 60.5 percent by weight of milk fat (69.5 percent milk fat on a dry basis). The product is then heat treated 85 to 90 degrees C (185-194 degrees F), after which lactic culture and enzymes are said to be added and the mixture held for three hours at a temperature of 40 degrees C (104 degrees F). The product is heated again to a temperature of 40 to 50 degrees C (104-122 degrees F), filled into cartons containing polyethylene bags of 25 kilograms each and, finally, frozen to a temperature of minus 20 degrees C.
The product is said to contain, by weight, 13 percent moisture, 9.5 percent protein, and about 18.5 percent lactose, salt and calcium. The pH of the product is stated to be in the range of 5.8-6.2. An analysis by the Customs Laboratory in New York found that the pH in the sample had risen to 6.94.
The product will be used as an ingredient in the manufacture of process cheese products such as process cheese food.
You state in your letter your belief that this "semi-soft, enzyme modified cheese ingredient" should be classified as a cheese in heading 0406.90.99, HTSUS. We disagree.
The process that you describe appears, superficially, to be a cheese making process. However, the "cheese ingredient" produced is, essentially, milk fat fortified with some milk protein concentrate (the skim milk protein appears to have been concentrated threefold). The product shows no evidence of fermentation from lactic acid producing cultures and no subsequent curd formation from either acidification or enzymatic activity.
As a mixture of milk fat (which is provided for in heading 0405, HTS, the provision for "Butter, and other fats and oils derived from milk; dairy spreads) and protein concentrate consisting of concentrated milk proteins, lactose, calcium, etc. (which is provided for in heading 0404, HTS, as a product consisting of natural milk constituents..., not elsewhere specified or included"), classification would be under GRI 3 under the tariff heading that describes the component which imparts the essential character to the product in question. In the instant case, based on the relative quantities of the two components in the product, this "cheese ingredient" is, essentially, milk fat of heading 0405, HTS.
Accordingly, the applicable subheading for this "semi-soft, enzyme modified cheese ingredient," if entered under quota, will be 0405.90.1040, Harmonized Tariff Schedule of the United States, which provides for butter and other fats and oils derived from milk; dairy spreads, other, described in additional U.S. note 14 to chapter 4 and entered pursuant to its provisions, other. The rate of duty will be 10 percent ad valorem.
The applicable subheading for this "semi-soft, enzyme modified cheese ingredient," if entered outside the quota, will be 0405.90.2040, HTS, which provides for butter and other fats and oils derived from milk; dairy spreads, other, other, other. The rate of duty will $1.92 per kilogram, plus 8.8 percent ad valorem. In addition, products classified in subheading 0405.91.2040, HTS, will be subject to additional duties based on their value, as described in subheadings 9904.05.37 - 9904.05.47.
For goods classified in subheading 0405.90.1040, an import license, issued to the importer by the United States Department of Agriculture, will be required at the time that such merchandise is entered for consumption into the United States.
Questions regarding licensing procedures and applications for licenses to import dairy products subject to quota should be addressed to:
Import Quota Manager for Dairy Products
STOP 1029/Room 5531-S
U.S. Department of Agriculture
1400 Independence Avenue, S.W.
Washington, DC 20250-1029
Importations of milk and milk products are subject to import regulations administered by various U.S. agencies. Requests for information regarding applicable regulations administered by the U.S. Food and Drug Administration may be addressed to that agency at the following location:
U.S. Food and Drug Administration
Division of Regulatory Guidance
HFF 314, 200 C Street, S.W.
Washington, DC 20204
Requests for information regarding applicable regulations administered by the U.S. Department of Agriculture may be addressed to that agency at the following location:
A.P.H.I.S., Veterinary Services
Federal Building, Room 756
6505 Belcrest Road
Hyattsville, MD 20782
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR 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 Thomas Brady at (212) 637-7064.
Sincerely,
Robert B. Swierupski
Director
National Commodity
Specialist Division