Dulce de leche

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