CLA-2 OT:RR:CTF:TCM H020410 JER
Port Director
Port of Champlain
U.S. Customs and Border Protection
237 West Service Road
Champlain, NY 12919
RE: Classification of Feta Cheese; Additional U.S. Note 3 to Chapter 4, HTSUS; Request for Internal Advice # 07/027
Dear Port Director:
This is in response to your memorandum dated November 6, 2007, forwarding a request for internal advice, submitted by counsel on behalf of Skotidakis Goat Farm, Inc. (hereinafter Skotidakis), in accordance with U.S. Customs and Border Protection (CBP) Regulations Part 177. Specifically, 19 C.F.R. §177.11 allows requests for "advice or guidance as to the interpretation or proper application of the Customs and related laws with respect to a specific Customs transaction . . . from the Headquarters Office at any time, whether the transaction is prospective, current, or completed." 19 C.F.R. §177.11(a). The request pertains to the classification of certain cheese under the Harmonized Tariff Schedule of the United States (HTSUS). The importer queries whether the subject cheese is classifiable as soft ripened cheese in subheading 0406.90.99, HTSUS.
FACTS:
The subject cheese is manufactured and imported by Skotidakis, a Canadian company. The Skotidakis retail label describes the cheese as “Feta Cheese (soft ripened cheese)” in a brine and lists its ingredients as pasteurized cow’s milk, skim milk, bacterial culture, calcium chloride, rennet and salt.
In their submission, the Protestant stated, in relevant part, the following:
What separates fresh from cured or “aged” cheese is what happens after the initial formation of the curd. Many cheeses can be brined, but that does not mean they are aged or cured by the brine….
Feta is completely different, the brine is not being used to cure or preserve the cheese. It is solely for taste and a medium for mesophillic and very salt resistant cultures to grow and form the crust on the Feta, which will take up to 90 days or more.
….
The term “mesophillic” is (sic) a group of bacteria that reproduces only in cooler temperatures as opposed to the mophillic cultures which work at higher [temperatures]….
Bacterial crust formation of feta is developed by certain bacteria such as Brevi-bacterium (e.g. mesophillic) which break down part of the cheese protein to amino nitrogen. The bacteria responsible (B. Linens), for creating the texture and flavor, can be grown in the brine (at 64-68 deg F) or surface applied, depending on the plant setup and capabilities.
A sample of the subject cheese was provided to CBP by the importer and has been described by the CBP laboratory in a report to this office, dated June 30, 2008, in relevant part, as follows;
The sample…is a white block of substance measuring approximately 20 cm by 7 cm by 8.5 cm that was submerged in a liquid….
Laboratory analysis both visual and microscopic indicates the sample has no prominent crust formed on the exterior surface. The result of the microscopic analysis using the gram stain for bacteria and yeast, and the methylene blue stains for molds show the presence of a few bacteria and no mold or yeast. The color and texture was uniform from the surface to the center. It is in part of cow’s milk origin.
In March 2006, a representative of Skotidakis met with the Commodity Specialist Team from the Port of Champlain to discuss the classification of the subject cheese. During that meeting, CBP found that the sample of cheese provided by Skotidakis did not meet all of the requirements of Additional U.S. Note 3 to Chapter 4, HTSUS, and was, therefore not classifiable as soft ripened cheese in subheading 0406.90.99, HTSUS. While the parties agreed that parts (c) and (d) of Additional Note 3 to Chapter 4, HTSUS, were satisfied, CBP found that the subject cheese did not meet the terms of Parts (a) and (b) of the Note. This disagreement led to a request by the importer for a binding ruling regarding the classification of the subject cheese. CBP issued New York Ruling Letter (NY) M84432, dated July 3, 2006, classifying the cheese, a sample of which was provided to CBP, in subheading 0406.90.95 or 0406.90.97, HTSUS, depending on whether the cheese was entered under license. CBP has also previously issued to the importer NY B87350, dated July 15, 1997, in which “Kadis feta cheese,” was classified, in subheading 0406.90.95 or 0406.90.97,HTSUS, depending on whether or not the cheese was entered under license. The importer contends that the subject cheese differs from the cheeses in the cited rulings because of their ingredients and the process by which they are made and that therefore, CBP’s reliance on these prior rulings is misplaced.
ISSUE:
Whether the subject cheese is described by Additional U.S. Note 3 to Chapter 4, HTSUS, and is classifiable as soft ripened cheese.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 2 through 6 may then be applied in order.
The HTSUS provisions under consideration are as follows:
0406 Cheese and curd:
0406.90 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):
0406.90.95 Described in additional U.S. note 16 to this chapter and entered pursuant to its provisions
0406.90.97 Other 2/.
0406.90.99 Other.
* * * *
Additional U.S. Note 3 to Chapter 4 states in pertinent part that:
For the purposes of this chapter, the term “soft ripened cow’s milk cheese” means cheese which:
Has a prominent crust formed on the exterior surface as a result of curing or ripening by biological curing agents such as molds, yeasts or other microorganisms;
Visibly cures or ripens from the surface toward the center;
Has a fat content by weight (on a moisture-free basis) of not less than 50 percent; and
Has a moisture content (calculated by weight of the non-fatty matter) of not less than 65 percent, but does not include cheese with mold distributed throughout its interior.
As previously stated, CBP has considered the classification of the feta cheese at issue. In NY M84432, based on a sample provided by the importer, CBP determined that the feta cheese imported by Skotidakis Goat Farm, Inc., was not classifiable as soft ripened cheese. We found that traditional soft ripened cow’s milk cheeses, after being formed in the loaf, are seeded on their exterior surface with a typical mold (e.g., Penicillium camemberti, P. caseicolum, P. candidum). These cheeses are matured to allow mold to establish itself as a prominent white crust on the surface of the cheese. In contrast, we found that in Feta cheese production, mold spores, yeasts or other biological curing agents are not applied to the exterior surface of the cheese nor does any visible crust develop. Further, feta cheese does not visibly ripen from the surface toward the center, as required by Additional U.S. Note 3 to Chapter 4, HTSUS. As such, the cheese in NY M84432 did not meet the terms of Parts (a) and (b) to Additional U.S. Note 3 to Chapter 4 and was classified in subheading 0406.90.95 or 0406.90.97 because it contained cow’s milk. This decision was consistent with the way in which CBP classified feta cheese in NY B87350.
Counsel argues that the subject cheese is substantially different from the cheese in NY M84432 and NY B87350 because the instant cheese “contains skim milk and is cured in brine and certain bacteria for 90 days.” The retail label of the subject cheese and the retail label of the cheese classified in NY M84432 reveal that the ingredients in the two cheese products appear to be identical. The retail label provided with the cheese in NY M84432 reads as follows:
SKOTIDAKIS
FETA CHEESE
(soft ripened cheese)
Ingredients: Pasteurized milk, skim milk, bacterial culture, calcium chloride, rennet, salt, kept in brine (water, salt, lactic acid).
25% M.F./ M.G. 55% Moisture/Humidite, 1kg
The retail label concerning the subject cheese reads as follows:
SKOTIDAKIS
FETA CHEESE
(soft ripened cheese)
Ingredients: Pasteurized milk, skim milk, bacterial culture, calcium chloride, rennet, salt, kept in brine (water, salt, lactic acid).
25% M.F./ M.G. 55% Moisture/Humidite, 28lbs
In NY B87350 the ingredients of the feta cheese were only described as “99.975 percent cow’s milk, 0.02 percent salt 0.003 percent bacterial culture, and 0.002 percent rennet.” There is no information in that ruling or in NY M84432 on the specific production method of the cheese at issue, although in NY M84432 we did generally discuss how soft-ripened cheese and feta cheese are made. For this reason we are unable to address Protestant’s contention that those cheeses are substantially different from the cheese at issue because the latter is “cured in brine and certain bacteria for 90 days.”
There is no dispute that the cheese at issue fulfills the requirements of parts (c) and (d) of Additional U.S. Note 3 to Chapter 4. This decision pertains specifically to whether the subject cheese meets the requirements set forth in parts (a) and (b) of the Note. Part (a) of Additional U.S. Note 3 to Chapter 4 requires that prominent crust be formed on the exterior surface as a result of curing or ripening by biological agents such as yeast, mold or other microorganisms. Part (b) of the Note requires that cheese visibly cures or ripens from the surface toward the center.
Counsel for the importer contends that the subject cheese meets the requirements of parts (a) and (b) of the Note because of the way in which the cheese is made, and that the cheese, therefore, should be classified in subheading 0406.90.99, HTSUS, as “other” cheese. Specifically, counsel states that the cheese is cured in a brine solution containing microorganisms at a controlled temperature of 65º F for 3 months, which causes the cheese “to form a visible crust and to ripen from the surface toward the center.” Counsel also contends that the subject cheese has a 1/8 inch surface layer or rind which is indicative of a “prominent crust” as required by part (a) of Additional U.S. Note 3 to Chapter 4. Counsel further argues that applying biological curing agents to the surface is not a requirement set forth in the HTSUS. Instead, counsel asserts, the prominent crust need only be a result of biological agents.
According to our research, and as required by part (a) of the Note, soft ripened cheese has a distinct exterior surface or “prominent crust” resulting from the application or exposure to biological curing agents, specifically molds (e.g. Penicillium camemberti, P. candidum) or yeast. The application of these molds to the rind encourages the cheese to ripen closest to the rind first then ripen progressively toward the middle of the cheese. The CBP laboratory has found that the cheese at issue does not contain the requisite curing agents necessary to ripen the cheese and to cause a crust to form. Other factors such as fat content, moisture content and the maturation time distinguishes soft ripened cheese from other cheeses and determines the above referenced features. Soft ripened cheese may be characterized by a velvety exterior crust (referred to commercially as a “Bloomy Rind”) or by having a rind which is visibly distinct from the center portion of the cheese. There are several images of soft ripened cheeses available on the Internet which we find to be exemplary of the cheese described by Additional U.S. Note 3 to Chapter 4. For instance, Camembert, Brie, Coulommiers and Triple Cremè are popular types of soft ripened cheese. Each has a white velvety crust resembling cake frosting with a rind that is distinguishable from the interior portion of the cheese.
With regard to the fact that the subject cheese is submerged in brine solution containing mesophilic cultures, we find that brine is a salt and water solution that is not the equivalent of molds, yeast or Penicillium. In addition, mesophilic cultures are primarily used at the early stages of the cheese making process as a “starter,” they are used to give cheese its “cheesy” taste and to acidify milk so that the milk coagulates or turns into curds. Molds, unlike mesophilic cultures, are used to ripen cheese such as Brie, Camembert and Coulommiers, and form a prominent crust on the cheese. See generally, Artisan Cheesemaking Terms, Holiday Market of Royal Oak at www.holiday-market.com. (“The bloomy rind is formed by spraying the cheese surface with spores of Penicillum candidum mold…”). We have found no evidence that mesophilic cultures impact the ripening of the cheese or create a prominent crust. Based on the manufacturing process of the subject cheese we find that there is no aspect of this process that would cause the cheese to ripen or form a crust. We have also found that the making of soft ripened cheese requires that the cheese is matured in a wet room with 95% humidity to encourage the growth of the prominent crust and to develop the soft interior of the cheese. See Making Cheese at Home, Dr. A.R. Hill, Dept. of Food Science, University of Guelph at www.foodsci.uoguelph.com.
Finally, in support of the view that the cheese at issue is visibly ripened and has a crust, counsel contends that the exterior of the subject cheese is different in color (yellow) than the (white) interior of the cheese. As previously stated, the application of molds, yeast or other biological curing agents to the rind compel the cheese to cure or ripen from the surface toward the center. Cheese that is visibly cured or ripened from the surface toward the center has a surface and rind that is noticeably different in texture and appearance from the interior portion of the cheese. Upon visual examination, CBP did not find there to be any distinction in color or texture between the surface (exterior) and the interior portion of the cheese. In addition, the CBP lab found that the color and texture of the cheese was uniform from its surface to the center.
Accordingly, we find that the subject cheese does not meet the specific requirements of parts (a) and (b) of Additional U.S. Note 3 to Chapter 4, and is therefore not classifiable as soft ripened cheese under the HTSUS.
HOLDING:
By application of GRI 1, the subject feta cheese is classified in heading 0406, HTSUS. It is specifically classified in subheading 0406.90.95, 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 …: Other: Other: Containing cow’s milk (except soft-ripened cow’s milk cheese): Described in additional U.S. note 16 to this chapter and entered pursuant to its provision.” The column one, general rate of duty is 10% ad valorem per kilogram. If the quantitative limits of Additional U.S. Note 16 to Chapter 4 have been reached, the product will be classified in subheading 0406.90.97, HTSUS, and will be dutiable at U.S. $1.509 per kilogram.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division