HQ 081515: Classification of battered cheese products under the Harmonized Tariff Schedule (HTS)

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 081515

                                    March 22, 1989


            CLA-2 CO:R:C:G  081515 JGH

            CATEGORY:  Classification

            TARIFF NO.:  HTSUS 2106.90.40

            David O. Elliott, Esq.
            Barnes, Richardson & Colburn
            475 Park Avenue South
            New York, New York  10016

            RE:  Classification of battered cheese products under the
                 Harmonized Tariff Schedule (HTS)

            Dear Mr. Elliott:

                 This is in reference to your submissions on the
            classification of battered cheese products from Canada.

            FACTS:

                 The products are battered cheddar cheese balls or cubes
            and battered mozzarella cheese sticks.  The cheese balls are
            said to be about one inch in diameter, 55.6 percent by weight
            of batter and 44.4 percent by weight cheddar cheese.  The
            mozzarella sticks are said to be about 3 inches in length and
            3/4 inch in diameter and to consist of 54.5 percent by weight
            of batter and 45.5 percent by weight mozzarella cheese.  A
            Customs laboratory examination of samples of the products
            described the cheese balls as consisting of 59 percent coating
            by weight and 41 percent cheese, and the sticks to consist of
            52.5 percent cheese and 47.5 percent coating.  It is asserted
            that the manufacturer is employing quality control measures to
            insure that the batter content is more than 50 percent by
            weight.  The coating is said to consist of wheat flour, toasted
            wheat crumbs, soya flour, corn flour, grated romano cheese,
            seasonings, and preservatives.  The products are said to be
            wrapped in a "tempura-lite" batter and then oil blanched and
            frozen.  They are prepared by pan frying, deep frying or oven
            baking.  They will be imported in non-retail size packages for
            sale to the institutional trade.


















                                         - 2 -

            ISSUE:

                 Whether the mozzarella sticks are classifiable as other
            cheese containing cow's milk in subheading 0406.90.8060, HTS,
            and the coated cheddar cheese balls as other cheddar cheese in
            subheading 0406.90.1040, HTS, or whether the products are
            classifiable as other food preparations, not elsewhere
            specified or included:  Containing over 5.5 percent by weight
            of butterfat and not packaged for retail sale, in subheading
            2106.90.40, HTS.

            LAW AND ANALYSIS:

                 In support of classification of the battered cheese
            products under the cheese provisions, it is argued that the
            products, even though coated, are essentially cheese; that the
            material which gives the product its dominant flavor is cheese.
            Following (General Rules of Interpretation) GRI 2(b), it is
            claimed the basic  character, cheese, has not been changed by
            the addition of batter.  Under GRI 3(b), it is asserted, the
            essential nature of the product may be determined by the nature
            of the principal material or component, its quantity, bulk,
            weight or value, and the role of the constituent material in
            relation to the use of the goods.  Heading 2106 HTS, would only
            be considered in the event a more specific provision is not
            available.  Heading 0406.90, HTS, for cheese, it is felt, is
            more specific and would apply to a cheese product such as this
            whether or not combined with other ingredients.

                 It is your position that since the products are cheese
            wrapped in "tempura-lite" seasoned batter, which is then oil
            blanched and frozen, the result is an appetizer, hors d'oeuvres
            or snack, which is cooked before consuming, that such a
            processing creates a new product which is most specifically
            described, following GRI 3(a), in subheading 2106.90.40, HTS,
            as a food preparation containing over 5.5 percent by weight
            butterfat.  In the explanatory notes to 2106, you note, there
            are examples of food preparations which include significant
            amounts of dairy products, such as preparations based on butter
            or other fats, or foodstuffs of flour sugar, milk powder, etc.
            Another example cited is from the "Explanatory Notes to the
            Combined Nomenclature of the European Community", in which
            cheese fondues are mentioned.  They are described as a core of
            cheese surrounded by bread crumbs and were considered as food
            preparations.  Therefore, subheading 2106.90.40 is said to be
            the most specific provision for these battered cheese products.
















                                         - 3 -

                 The products are essentially bite-size snack foods and
            therefore can be readily distinguished from the larger cheese
            products such as cheese balls which are seasoned.  In fact, the
            explanatory notes to heading 0406 mentions that the presence of
            meat, spices, vegetables, fruit, nuts, vitamins, skimmed milk
            powder etc., does not affect classification provided that the
            goods retain the character of cheese.  From the small size of
            the products and the amount of coating each product has, it is
            not believed that they contain commercially extractable
            butterfat.

                 Customs has previously considered the classification of a
            cheese product similar to these.  In ruling 014958 of May 17,
            1972, the issue was the classification of "cheese footballs,"
            described as small spherical cheese-filled biscuits/cookies.
            The products were classified as edible preparations in item
            182.95, TSUS.  They were not subject to quota restraints, since
            the butterfat content was not felt to be commercially
            extractable and as finished articles they were not considered
            suitable for use as ingredients in the commercial production of
            other edible articles.

                 Another factor considered by Customs in the classification
            of products such as this, is the thickness of the coating.  In
            Hilo Rice Mill Co., Ltd., American Customs Brokerage Company v.
            United States, C.A.D. 866, the classification of coated peanuts
            was considered.  The court noted the coating appeared to be the
            thickness of the diameter of the peanut.  The product was
            classifiable as a baked good, rather than as peanuts.  In
            contrast, in another case, peanuts with thin, brittle coatings
            were still considered as peanuts for classification purposes.

                 In arguing that the products are cheese, it is apparently
            believed that a distinction may be drawn between such earlier
            decisions and the current issues brought under the HTS, because
            of new concepts such as"essential character."  Under the GRIs
            the first two rules concern the classification of merchandise
            according to the applicable HTS headings.  It is therefore
            contended that the provisions for cheese provide for a product
            such as this.  However, these battered cheese products are
            something more than a seasoned cheese.  In view of the method
            in which the battered cheese products are produced, they are
            not merely mixtures but are more accurately described as
            "preparations for use, either directly or after processing
            (such as by cooking, dissolving, boiling in water, milk, etc.)
            for human consumption", as described in the explanatory notes
            for 2106,  HTS.















                                         - 4 -

            HOLDING:

                 Battered cheese products, bite-size snack foods, which are
            processed food products consisting of a small amount of cheese
            covered with a batter which is thicker by weight than the
            cheese component and which do not contain any extractable
            butterfat and are not suitable for use as ingredients in the
            commercial production of edible articles, are classifiable
            under the provision for other food preparations not elsewhere
            specified or included: containing over 5.5 percent by weight of
            butterfat and not packaged for retail sale, in subheading
            2106.90.40, HTS.  The rate of duty is 16 percent ad valorem.

                                        Sincerely,




                                        John Durant, Director
                                        Commercial Rulings Division




































            6cc:  Area Director, New York Seaport
            JGHurley:jaj:2/27/89