HQ 952665: Reconsideration of NYRL 876253; Cheese Wackies, processed cheese product in subheading 0406.30, HTSUSA; Cheese and curd, processed cheese, not grated or powdered; Import Restrictions under 9904.10.51

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 952665

                        December 16, 1992

CLA-2 CO:R:C:F 952665 LPF

CATEGORY: Classification

TARIFF NO.: 0406.30.6045; 9904.10.51

Ms. Alicia M. Avery
Director of Business Development
Fromageries Bel, Inc.
2050 Center Avenue
Fort Lee, NJ 07024

RE: Reconsideration of NYRL 876253; Cheese Wackies, processed
    cheese product in subheading 0406.30, HTSUSA; Cheese and
    curd, processed cheese, not grated or powdered; Import
    Restrictions under 9904.10.51

Dear Ms. Avery:

    This is in response to your letter dated August 13, 1992,
requesting reconsideration of New York Ruling Letter 876253,
issued July 31, 1992.  In that ruling Cheese Wackies were
classified in subheading 0406.30.6045 as, "Cheese and curd:
Processed (process) cheese, not grated or powdered: Other,
including mixtures of the above: Other, Containing or processed
from, Swiss, Emmentaler or Gruyere-process cheeses."  The correct
classification follows.

FACTS:

    Cheese Wackies, imported from France, under The Laughing Cow
trademark, is an orange colored, process cheese spread snack in
the form of animal and clown heads representing circus figures. 
Each retail package, which is 3.5 oz. net weight, contains six
cheese heads each weighing 0.58 oz.  The product is processed
from a mixture of three types of cheese in combination with other
ingredients, such as skim milk, butter, casein, melting salts,
and less than 1 percent each of salt, citric acid, and carotenal
color.  The cheese ingredients, which comprise 33 percent by
weight of the ingredient mix, consist of Cheddar cheese (12.5
percent), Swiss cheese (11.0 percent), and semi-soft cheeses (9.5
percent).  We understand that in the manufacturing process the
natural cheeses, shredded or otherwise reduced in size, are mixed
with the other ingredients under heat and are melted down into a
homogenous plastic mass. 

ISSUE:

    Whether the Cheese Wackies are classifiable in subheading
0406.30 as processed cheese or in subheading 0406.90 as other
cheese.

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LAW AND ANALYSIS:

    The General Rules of Interpretation (GRI's) taken in their
appropriate order provide a framework for classification of
merchandise under the HTSUSA.  Most imported goods are classified
by application of GRI 1, that is, according to the terms of the
headings of the tariff schedule and any relative section or
chapter notes.  In the event that the good cannot be classified
solely on the basis of GRI 1, and if the headings and legal notes
do not otherwise require, the remaining GRI's may then be
applied.  The Explanatory Notes (EN's) to the Harmonized
Commodity Description and Coding System, which represent the
official interpretation of the tariff at the international level,
facilitate classification under the HTSUSA by offering guidance
in understanding the scope of the headings and GRI's.

    Customs and the inquirer agree that the product is
classifiable within heading 0406, as cheese and curd.  However,
at the six digit subheading level, 0406.30 provides for processed
cheese, while 0406.90 provides for other cheese.  According to
GRI 6, the GRI's, section notes and chapter notes pertain to
subheadings in the same fashion.

    The EN's to 0406 indicate that the heading covers:
    
          [p]rocessed cheese, also known as process cheese.
          It is manufactured by comminuting, mixing, melting
          and emulsifying, with the aid of heat and emulsifying
          or acidifying agents (including melting salts), one
          or more varieties of cheese and one or more of the
          following: cream or other dairy products, salt,
          spices, flavouring, colouring and water.

As the subject cheese is mixed and melted with other ingredients,
among which are skim milk, butter, salts and coloring, the
product is a processed cheese, as referred to in the EN's.  It is
classifiable within 0406.30.  

    Because the product is not made from only one of the specific
types of cheese included within the subheading, nor is it made
from sheep's milk cheese, it is classifiable, at the eight digit
subheading level, within 0406.30.60.

    At the ten digit subheading level, 0406.30.6015 provides for
processed cheese containing or processed from, Cheddar cheese,
while 0406.30.6045 provides for processed cheese containing or
processed from, Swiss, Emmentaler or Gruyere-process cheese.  The
subject product contains, or is processed from, both Cheddar and
Swiss cheese.  Since separate HTSUSA subheadings provide for the 



                               -3-

product, it is classified by applying GRI 3(a) which explains, in
pertinent part, and when applied using GRI 6, that goods which
are classifiable under two or more subheadings are classified
under the subheading which provides the most specific description
of the good.  However, all such subheadings are regarded as
equally specific when each refers to only part of the goods.

    Each of the possible subheadings, in this case, refers to
only part of the good.  Since the subheadings are, thus, regarded
as equally specific, we do not classify the product by GRI 3(a)
but rather by GRI 3(b).

    GRI 3(b) provides that products made up of different
components, that is, composite goods, shall be classified as if
they consisted of the component which gives them their essential
character.  "Essential character" is the attribute which strongly
marks or serves to distinguish what a product is.  EN VIII to GRI
3(b) explains that bulk, quantity, weight, value or the role of a
constituent material in relation to the use of the product are
indicia of essential character.  Because both cheese varieties
contribute coequally to the product, neither imparts essential
character.

    Accordingly, GRI 3(c) explains that a product which cannot be
classified by reference to 3(a) or 3(b) is classified under the
subheading which occurs last in numerical order among those which
equally merit consideration.  The product, therefore, is
classifiable in subheading 0406.30.6045.

HOLDING:

    The Cheese Wackies are classifiable in subheading
0406.30.6045, as "Cheese and curd: Processed (process) cheese,
not grated or powdered: Other, including mixtures of the above:
Other, Containing, or processed from, Swiss, Emmentaler or
Gruyere-process cheese."  The general column one rate of duty is
10 percent ad valorem.  Subheading 9904.10.51, imposed by Section
22 of the Agricultural Adjustment Act, limits the amount of such
cheese which may be imported from the European Economic Community
to an annual quota quantity of 3,625,000 kilograms.

    NYRL 876253 is affirmed.


                                   Sincerely,



                                   John Durant, Director
                                   Commercial Rulings Division