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