CLA-2 RR:CTF:TCM H274749 EGJ
Alejandro C. Giannotti
4848 Loop Central
Houston, TX 77081
Re: Modification of HQ 957175 and NY E83545, and Revocation of NY J85348: Classification of Cow’s Milk Mozzarella Cheese
Dear Mr. Giannotti:
This is in reference to Headquarters Ruling Letter (HQ) 957175, dated July 11, 1995, which was issued to you concerning the tariff classification of several types of cheeses, including cow’s milk mozzarella cheese, under the Harmonized Tariff Schedule of the United States (HTSUS). In HQ 957175, U.S. Customs and Border Protection (CBP) classified the mozzarella under subheading 0406.90, HTSUS, which provides for cheeses which are not specified elsewhere. We have reviewed HQ 957175 and find it to be in error. For the reasons set forth below, we hereby modify HQ 957175 and New York Ruling Letter (NY) E83545, dated August 23, 1999, and we revoke NY J85348, dated June 12, 2003, with regard to the classification of cow’s milk mozzarella cheese.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI, a notice of proposed action was published on June 15, 2016, in the Customs Bulletin, Vol. 50, No. 24. One comment was received in support of the proposed modification.
In HQ 957175, the subject merchandise was described as follows:
Flavor: Soft, lightly developed
Consistency: Soft, rather consistent, lightly elastic
Texture: Smooth, thread-like dough
Color: Creamy white
Form: Parallelepiped or in 20kg block
Rind: Without rind, cryovac vacuum packed
Fat in dry matter: 36-40%
Shell-life: Six months
Net weight: 3.5 and 20,000 kg …
On April 4, 1995, you told Headquarters personnel the cheeses are all to be made from cow’s milk.
In NY E83545, the subject merchandise was described as follows:
Mozzarella (whole milk) is a pasta filata cheese. The ingredients are whole milk, bacterial culture, rennet, and 1.4 percent salt. The pH is 5.2-5.3. The moisture content is 48 percent and the fat content is 23 percent. The milk to vat temperature is 32 degrees Centigrade, and the cooking temperature is 45 degrees Centigrade. Mozzarella does not contain lipase, and it has a characteristic bland taste.
Is the cow’s milk mozzarella classified under subheading 0406.10, HTSUS, as a fresh cheese, or under subheading 0406.90, HTSUS, as an “other” cheese that is not specified elsewhere?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (HTSUS) is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined 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. Under GRI 6, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to GRIs 1 through 5.
The HTSUS provisions at issue provide, in pertinent part, as follows:
0406 Cheese and curd:
0406.10 Fresh (unripened or uncured) cheese, including whey cheese, and curd:
Other cheese and substitutes for cheese (except cheese not containing cow's milk, and soft ripened cow's milk cheese):
0406.10.84 Described in additional U.S. note 16 to this chapter and entered pursuant to its provisions.
* * *
0406.90 Other cheese:
Other cheeses, and substitutes for cheese, including mixtures of the above:
Other, including mixtures of the above …:
Containing cow’s milk (except soft-ripened cow’s milk cheese):
0406.90.95 Described in additional U.S. note 16 to this chapter and
entered pursuant to its provisions.
* * *
Additional U.S. Note 16 to Chapter 4, HTSUS, provides as follows:
16. The aggregate quantity of cheeses and substitutes for cheese (except (i) cheese not containing cow's milk; (ii) soft ripened cow's milk cheese; (iii) cheese (except cottage cheese) containing 0.5 percent or less by weight of butterfat; and, (iv) articles within the scope of other import quotas provided for in additional U.S. notes 17 through 25, inclusive, to this chapter), the foregoing goods entered under subheadings 0406.10.04, 0406.10.84, 0406.20.89, 0406.30.89 and 0406.90.95 in any calendar year shall not exceed the quantities specified in this note (articles the product of Mexico shall not be permitted or included under the aforementioned quantitative limitation and no such articles shall be classifiable therein).
Other countries or areas
Of the quantitative limitations provided for in this note for the EU 27, Portugal shall have access to a quantity of not less than 353,000 kilograms. Of the quantitative limitations provided for in this note for Israel, no more than 160,000 kilograms shall contain more than 3 percent by weight of butterfat.
Imports under these provisions require import licenses, 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.
* * *
The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 04.06 states:
This heading covers all kinds of cheese, viz. :
(1) Fresh cheese (including cheese made from whey or buttermilk) and curd. Fresh cheese is an unripened or uncured cheese which is ready for consumption shortly after manufacture (e.g., Ricotta, Broccio, cottage cheese, cream cheese, Mozzarella).
* * *
In both HQ 957175 and NY E83545, CBP classified the mozzarella in residual subheading 0406.90, HTSUS, which covers cheeses which are not specifically provided for elsewhere in the nomenclature. However, we are of the view that mozzarella is a fresh cheese which is specifically described in subheading 0406.10, HTSUS. For support, we note the descriptions of mozzarella which are provided below:
Many soft, unripened varieties of Italian cheese exist, but the two most important are Mozzarella and Ricotta … Mozzarella cheese was traditionally made from the high fat milk of the water buffalo. In southern Italy, including areas a few miles from Naples, the water buffalo still supplies milk for this type of cheese. For many decades, however, Italians have made Mozzarella cheese from cow’s milk and in this form it is highly acceptable. Frank Kosikowski, Cheese and Fermented Milk Foods, 153 (1966).
Mozzarella. Mozzarella is a soft, plastic-curd cheese that is made in some parts of Latium and Campania in southern Italy. It originally was made only from buffalo’s milk, but now it is made also from cow’s milk. It is made in much the same way as Caciocavallo and Scamorze; however, it more nearly resembles Scamorze, as both Mozzarella and Scamorze are eaten while fresh, with little or no ripening. Dairy Products Laboratory, U.S. Dep’t. of Agriculture, Agriculture Handbook No. 54, Cheese Varieties and Descriptions 80 (1969).
We also note that EN 04.06 specifically names mozzarella cheese as a type of fresh cheese. In NY N257393, dated October 3, 2014, and in NY N242316, dated June 5, 2013, CBP classified cow’s milk mozzarella cheese in subheading 0406.10, HTSUS. For all of the aforementioned reasons, we find that the mozzarella is properly classified under subheading 0406.10, HTSUS, as a fresh cheese.
Additional U.S. Note 16 to Chapter 4 sets forth a quota which limits importations of goods classified under subheading 0406.10.84, HTSUS. If the mozzarella is imported in quantities that fall under the limit set forth in additional U.S. Note 16 to Chapter 4, it shall remain classified in subheading 0406.10.84, HTSUS. However, if the quantitative limits of additional U.S. Note 16 to Chapter 4, HTSUS, have been reached, the subject mozzarella will be classified in subheading 0406.10.88, HTSUS.
We received one comment in support of our proposed notice of modification, which was published on June 15, 2016, in the Customs Bulletin, Vol. 50, No. 24. The commenter identified a third ruling on cow’s milk mozzarella which should be revoked – NY J85348, dated June 12, 2003. In that ruling, CBP classified “Argentine mozzarella” in subheading 0406.90, HTSUS. The subject merchandise was described as follows:
The cheese in question is made from cow’s milk and called “Argentine Mozzarella cheese.” The ingredients are pasteurized cow’s milk, rennet, and starter. A sample cheese loaf, provided with this ruling request, was pale yellow in color and rindless. This cheese had a semi-soft, pliable body and a smooth interior with few mechanical openings. The milkfat content was said to be 30 percent (51-55 percent on a dry basis), with 42-46 percent moisture, and less than 1 percent salt. The sample of this Argentine Mozzarella cheese is a rectangular loaf of semi-soft cheese.
We agree with the commenter that this third ruling should be revoked, and that the subject Argentine mozzarella cheese should be classified in subheading 0406.10, HTSUS. Therefore, we have added this ruling to the instant revocation.
If imported in quantities that fall within the limits described in additional U.S. Note 16 to Chapter 4, the mozzarella will be classified in subheading 0406.10.84, HTSUS, which provides for “Cheese and curd: Fresh (unripened or uncured) cheese, including whey cheese, and curd: Other: Other: Other: Other cheese and substitutes for cheese (except cheese not containing cow's milk, and soft ripened cow's milk cheese): Described in additional U.S. note 16 to this chapter and entered pursuant to its provisions.” The 2016 column one, general rate of duty is 10 percent ad valorem.
If the quantitative limits of Additional U.S. Note 16 to Chapter 4, HTSUS, have been reached, the mozzarella will be classified in subheading 0406.10.88, HTSUS, which provides for “Cheese and curd: Fresh (unripened or uncured) cheese, including whey cheese, and curd: Other: Other: Other: Other cheese and substitutes for cheese (except cheese not containing cow's milk, and soft ripened cow's milk cheese): Other.” The 2016 column one, general rate of duty is $1.509 per kilogram. Furthermore, if classified in subheading 0406.10.88, HTSUS, the mozzarella will also be subject to the additional duty rates specified in subheadings 9904.06.38 - 9904.06.49, HTSUS, as applicable.
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 the World Wide Web at www.usitc.gov.
EFFECT ON OTHER RULINGS:
HQ 957175, dated July 11, 1995, and NY E83545, dated August 23, 1999, are hereby modified with respect to the classification of cow’s milk mozzarella cheese.
NY J85348, dated June 12, 2003, is hereby revoked.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.
Myles B. Harmon, Director
Commercial and Trade Facilitation Division