HQ 964143

October 5, 2001

CLA-2 RR:CR:GC 964143 JGB

CATEGORY: Classification

TARIFF NO.: 0406.90.4100; 0406.90.4200

Port Director

Port of New York

C/o Chief, Residual Liquidation and Protest Branch

U.S. Customs Service

1 Penn Plaza

New York, NY 10119

RE: Protest 1001-00-101410; \"Zerto\" Brand Reggianito Cheese

Dear Director:

This is a decision on Protest 1001-00-101410 against your decision in
the classification of \"Zerto\" Brand Reggianito Cheese under the
Harmonized Tariff Schedule of the United States (HTSUS). The entries,
made in 1999, were liquidated during January 2000, and the protest
timely filed on March 30, 2000.

**FACTS**:

The merchandise consists of \"Zerto\" Brand Reggianito Cheese made from
Parmesan and Romano cheeses from Argentina that have been aged less than
10 months and 5 months, respectively. Both types of cheese are made from
cow\'s milk and are Italian style cheeses.

You classified the cheese in subheading 0406.90.4100, HTSUS, the
provision for \"Cheeses 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 this chapter
and entered pursuant to its provisions.\"

The protestant claims that the merchandise is classified in heading
0406.10.5400, HTSUS, the provision for \"Cheese and curd: Fresh
(unripened or uncured) cheese, including whey cheese, and curd: Other:
Other: Italian-type cheeses, made from cow\'s milk, in original loaves
(Romano made from cow\'s milk, Reggiano, Parmesan, Provolone, Provoletti
and Sbrinz); Italian-type cheeses, made from cow\'s milk, not in
original loaves (Romano made from cow\'s milk, Reggiano, Parmesan,
Provolone, Provoletti, Sbrinz and Goya), and cheese and substitutes for
cheese containing, or processed from, such Italian-type cheeses, whether
or not in original loaves: Described in additional U.S. Note 21 to this
chapter and entered pursuant to its provisions ."

**ISSUE**:

Whether the Reggianito cheese is \"cured or ripened\" cheese for tariff
purposes.

**LAW AND ANALYSIS**:

Classification under the HTSUS is made in accordance with the General
Rules of Interpretation (GRI). 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 GRI
may then be applied. The Explanatory Notes (EN) to the Harmonized
Commodity Description and Coding System, which represent the official
interpretation of the Harmonized System at the international level,
facilitate classification under the HTSUS by offering guidance in
understanding the scope of the headings and GRI.

There is no dispute that the product is classified in heading 0406,
HTSUS, providing for cheese or curd. Therefore, classification will be
determined according GRI 6, which provides that:

> For legal purposes, the classification of goods in the subheadings of
> a heading shall be determined according to the terms of those
> subheadings and any related subheading notes and, *mutatis mutandis*,
> to the above rules, on the understanding that only subheadings at the
> same level are comparable. For the purposes of this rule, the relative
> section, chapter and subchapter notes also apply, unless the context
> otherwise requires.

To classify the product the claimed subheadings may be examined to
determine their applicability. Subheading 0406.10 provides for \"fresh
(unripened or uncured) cheese.\" The product must meet this description
or it must be classified in the subheading that accommodates \"Other
cheese,\" in this case, subheading 0406.90, HTSUS.

The protestant claims that the product must be classified in the
provision for \"unripened or uncured\" cheese because it is composed of
Parmesan and Romano cheese and the product has not met the curing
requirements for those cheeses, being \"not less than\" 10 and 5 months,
respectively, according to the U.S. Food and Drug Administration\'s
Standards of Identity. See 21 CFR §133.165 (Parmesan) and 21 CFR
§133.183 (Romano).

The protestant\'s website (www.atalanta1.com) describes the product in
detail for sales purposes and indicates that it has an \"AGE 5-6
months.\" This degree of aging is consistent with the Customs position
that the cheese has been cured or ripened. During this curing period the
combined actions of the bacteria, enzymes and molds operate on a cheese
when proper conditions are maintained. Frandsen, ed., *The Dairy
Handbook and Dictionary*. Nittany Printing and Publishing Co., State
College, PA, (1958), 432. Textbook definitions indicate that in the
trade, the definition of \"cured\" is broad and not confined to the
narrow scope of the FDA\'s Standard of Identity. See Kosikowski, *Cheese
and Fermented Milk Foods*, Edwards Brothers, Ann Arbor, MI (1977), 432
and 107, the subchapter entitled \"Ripening, Curing, or Maturing
Cheese.\"

Therefore, Customs maintains its position that the instant product is
aged, ripened, and cured and ineligible for classification in subheading
0406.10.5400, HTSUS, as \"Fresh (unripened and uncured) cheese.\"

With respect to the FDA standards, Customs has \"repeatedly ruled that
the standards of identity promulgated for purposes other than tariff
classification are not binding . . . in classifying imported
merchandise.\" Bureau \[of Customs\] letter, TC 452.53 T, issued in
1968. The effect of the components of the instant product not meeting
the FDA standard is that the resultant product may not be marketed as
meeting those standards and that they are something other than Parmesan
or Romano. The failure to meet the standard does not convert the cheeses
into uncured or unripened cheese. Moreover, the instant cheese is not
being offered to the public as an unripened or uncured cheese. It is
being offered, in the words of the website designation, as an
\"alternative to its more expensive Italian cousins.\" The correct
classification for the product is in subheading 0406.90.4100 or
0406.90.4200, HTSUS, depending on whether in or out of quota. This
classification is consistent with Headquarters Ruling Letter 957175,
dated July 11, 1995, in which a \"Regianitto\" cheese from Argentina
with similar characteristics was classified in subheading 0406.90.4100,
HTSUS.

**HOLDING**:

The protest should be **denied.**

If the product is entered under the quota, it is classifiable under
subheading 0406.90.4100, HTSUS. If entered outside the quota, it is
classified under subheading 0406.90.4200, HTSUS and is subject to
additional safeguard duties listed in subheadings 9904.05.95 through
9904.06.05. HTSUS. Imports under provision 0406.90.4100, HTSUS, require
import licenses, in accordance with terms and conditions provided in
regulations issued by the Secretary of Agriculture and 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.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550‑065,
dated August 4, 1993, Subject: Revised Protest Directive, you are to
mail this decision, together with the Customs Form 19, to the protestant
no later than 60 days from the date of this letter. Any reliquidation of
the entry or entries in accordance with the decision must be
accomplished prior to mailing the decision. Sixty days from the date of
the decision, the Office of Regulations and Rulings will make the
decision available to Customs personnel, and to the public on the
Customs Home Page on the World Wide Web at www.customs.gov, by means of
the Freedom of Information Act, and other methods of public
distribution.

Sincerely,

John Durant, Director

Commercial Rulings Division