HQ 084848: Dulce de leche

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                       HQ 084848


                                      October 10,1989

            CLA -2 CO:R:G 084848 JGH

            CATEGORY: Classification

            TARIFF NO.: 1901.90.3040

            Mr. Nolberto J. Munier
            10-251 West 14th St.
            North Vancouver, B.C.
            Canada, V7M 1P4

            RE: Dulce de leche

            Dear Mr Munier:

                 Your letter of June 5, 1989, concerns the tariff
            classification of Dulce de leche, a product of Argentina, under
            the Harmonized Tariff Schedule of the United States (HTSUS).
            This product was the subject of New York Ruling Letter (826624)
            dated February 17, 1988.

            FACTS:

                  Dulce de leche, a caramel spread, is said to consist of
            57.78 percent sugar by weight and 42.22 percent milk by weight.
            It is used as a dessert spread, a sweetener for coffee or tea,
            and in similar uses.

            ISSUE:

                  Whether Dulce de leche is classifiable under the
            provision other food preparations of goods of headings 0401 to
            0404, not containing cocoa powder or containing cocoa powder in
            a proportion by weight of less than 10 percent, not elsewhere
            specified or included, in subheading 1901.90.3040, HTSUS, and
            subject to the quota restrictions of subheading 9904.10.60,
            HTSUS, or under the provision for other food preparations not
            elsewhere specified or included in subheading 2106.90.6097,
            HTSUS.




















                                          -2-


            LAW AND ANALYSIS:

                  In your letter you state that the name, "Dulce de leche,"
            means something sweet or pleasing to the taste made of milk.
            You feel that as the sweetness is the quality which provides
            the flavor, the spread should be considered a sugar product for
            classification purposes.  The cost of the sugar is given as
            $0.2529 per kilogram and the milk is said to be $ 0.2029 per
            kilogram.

                 While it is true that under the prior tariff, the Tariff
            Schedules of the United States, a product of this type was
            classified on the basis of the component of chief value, under
            the HTSUS this criteria is no longer used.  Under the HTSUS,
            classification of merchandise is governed by the General Rules
            of Interpretation (GRI's).  GRI 1 provides that classification
            is determined first in accordance with the terms of the
            headings and any relative Section or Chapter notes.  The
            Explanatory Notes, which should be consulted for guidance in
            the interpretation of the provisions of the HTSUS, state that
            heading 2106 applies if the product is not covered by any other
            heading.  Heading 1901 states that it includes food
            preparations which contain goods of headings 0401 to 0404 (milk
            and milk products).  The notes point out that the preparations
            of the heading contain in addition to natural milk
            constituents, other ingredients, including products which may
            be sweetened. Clearly, heading 1901 is more specific than 2106.

                 As you point out, there are a number of "Dulce" products,
            and in this case it is milk which gives the product its flavor.
            The language of heading 1901 describes this product, since it
            is based on milk.  Even though it may be in chief value of
            sugar, no longer is this concept considered determinative for
            tariff classification purposes, but rather, it is the component
            which provides the predominant characteristic.  Milk is the
            ingredient which imparts the taste and consistency to the
            spread.  Indeed, without milk there would be no Dulce de leche.
























                                          -3-


            HOLDING:

                 Dulce de leche is classifiable under the provision for
            food preparations of goods of headings 0401 to 0404 in
            subheading 1901.90.3040, HTSUS.  The rate of duty is 17.5
            percent ad valorem, and, in addition, it is subject to the
            quota restrictions of subheading 9904.10.60, HTSUS.

                                        Sincerely,




                                        John Durant, Director
                                        Commercial Rulings Division













































            6 cc: Area Dir., N.Y. Seaport
            J. Hurley library/peh
            084848