CLA-2-04:OT:RR:NC:N2:231
Ms. Misty G. Gibbons
Pacific Customs Brokers Inc.
P.O. Box 4505
Blaine, WA 98231-4505
RE: The tariff classification of “cheese scrap” from Canada.
Dear Ms. Gibbons:
In your letter dated April 6, 2012, you requested a tariff classification ruling on behalf of your client, International Ingredients Corporation (“IIC”) (Fenton, MO). In response to our request for additional information, you submitted a supplemental letter dated May 3, 2012.
You initially described the merchandise as “cheese scrap” consisting of byproducts collected during the manufacture of cheese made from cow’s milk. These byproducts were said to include cheese, cheese scraps, cheese rind, cheese cuts and trims, dairy slurries, beginning and end-run material, and residuals from various steps in the cheese-making process. In your supplemental letter, you clarified this description, stating that virtually all the material will be some form of cheese, and that any liquid whey that might be included would be “incidental” to the cheese (probably less than 1%). The material will be collected in lined steel or fiber barrels. Generally, the contents of an individual barrel will be uniform, consisting of scraps of only one kind of cheese (e.g., Parmesan). However, different barrels within the same shipment will typically contain different kinds of cheese. For example, one barrel might contain Parmesan scraps; another might contain Cheddar scraps, and so forth. Nevertheless, you have advised that the respective amounts, by weight and by value, of the individual cheese types within a given shipment will be known at the time of entry.
The cheese scrap at issue is said to be “not fit for human consumption.” You have stated that small specialty cheese manufacturers commonly sell this type of material directly to mink farms or hog farms to be added directly to the animals’ rations. However, to avoid potential safety / contamination issues, larger cheese manufacturers tend to require that this type of material be processed before it is used in animal feeding applications. (Typically, the processing will be done at HACCP- or SFSF-certified facilities such as those operated by your client. “HACCP” denotes “Hazard Analysis & Critical Control Points,” while “SFSF” denotes “Safe Feed Safe Food”.)
In the present case, your client, IIC, plans to import the cheese scrap into the United States in order to do such processing. Specifically, IIC intends to process the scrap by “analyzing, blending with other feed ingredients, melting, screening, heat-treating and dehydrating (using a spray dry or belt dry process).” The resulting material will be “a highly palatable, nutritionally dense feed ingredient in powder form,” which will be marketed to pet food manufacturers and will also be incorporated into the diets of calves and young swine.
In light of its intended processing and ultimate use in the United States, you have suggested that the imported cheese scrap should be classified in heading 2309, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “preparations of a kind used in animal feeding.” We disagree. Note 1 to Chapter 23, HTSUS, states that “heading 2309 includes products of a kind used in animal feeding, not elsewhere specified or included…” The imported merchandise here is cheese, which is, in fact, specified / included elsewhere in the tariff schedule, i.e., in Chapter 4. Heading 0406 of Chapter 4, HTSUS, is an unlimited, 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). Heading 0406 is not a “use provision,” nor is it necessarily dependent on the quality, perfection, or marketability of the goods. Cheese that has become deformed or damaged, for example, does not thereby become an animal-feed preparation, or an animal-feed ingredient, for tariff classification purposes.
We find that each portion of an imported “cheese scrap” shipment will be classifiable in the respective tariff subheading properly applicable to the kind of cheese that portion represents. Thus, if a shipment consists of several types of cheese, several classifications will be required on the Customs entry.
For example, if a portion of the shipment consists of scrap of aged Parmesan cheese, the applicable subheading for that portion, if entered under quota, will be 0406.90.4100, HTSUS, which provides for cheese and curd: other cheese: Romano made from cow’s milk, Reggiano, Parmesan, Provolone and Provoletti cheeses: other: made from cow’s milk: described in additional U.S. note 21 to chapter 4 and entered pursuant to its provisions. The general rate of duty will be 15% ad valorem.
Imports under subheading 0406.90.4100, 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
Stop 1029
1400 Independence Avenue, SW
Washington, DC 20250-1029
Tel: (202) 720-1344
The applicable subheading for the Parmesan cheese scrap, if entered outside the quota, will be 0406.90.4200, HTSUS, which provides for cheese and curd: other cheese: Romano made from cow’s milk, Reggiano, Parmesan, Provolone and Provoletti cheeses: other: made from cow’s milk: other. The rate of duty will be $2.146 per kilogram.
As indicated above, portions of the shipment consisting of scrap of other types of cheese will be classifiable under the HTSUS subheadings properly applicable to them. Since there are numerous subheadings for cheese, it is not practical for us to describe all of them here.
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.
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/.
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