CLA-2 CO:R:C:F 950484 LPF
Mr. Esa Luomanpera
Corporate Planning & Development Director
McCadam Cheese Company, Inc.
P.O. Box 345, #12 Annette Street
Heuvelton, NY 13654
RE: Milk Protein Concentrate (MPC 75) in heading 0404, HTSUSA
Dear Mr. Luomanpera:
This is in response to your letter of September 27, 1991,
submitted on behalf of McCadam Cheese Company, Inc. of Heuvelton,
NY. Your inquiry requests the proper classification of Milk
Protein Concentrate (MPC 75) under the Harmonized Tariff Schedule
of the United States Annotated (HTSUSA). You submitted a sample
with your request for a binding ruling.
FACTS:
The product, Milk Protein Concentrate (MPC 75), imported
from Finland, is produced from skim milk by a chromatographic
separation process which separates the lactose for removal from
the protein. After lactose removal, the product dries to a
powder. The inquirer provides that the product has a typical
composition, by weight, of 76 to 80 percent (75 percent minimum)
protein, 1 to 1.5 percent (1.5 percent maximum) lactose, 13 to 15
percent ash, 1.5 to 2.5 percent (3 percent maximum) fat, and 3 to
5 percent (5 percent maximum) moisture. The protein to lactose
ratio within the product may be changed according to the need of
the customer. The Customs Laboratory at New York analyzed a
sample of this product and found it contained, by weight, 79
percent protein, 12.8 percent ash, 1.1 percent fat, 3.7 percent
moisture and the balance, about 3.4 percent, lactose. The
product may be used as an ingredient in low calorie products and
in food preparations for those suffering from galactosemia.
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ISSUE:
Whether the Milk Protein Concentrate (MPC 75) is
classifiable in heading 0404, as whey; products consisting of
natural milk constituents, whether or not containing added sugar
or other sweetening matter, not elsewhere specified or included;
or rather in heading 3501, as casein, caseinates and other casein
derivatives.
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. The majority of 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 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'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.
The product at issue is classifiable by applying GRI 1, that
is, according to the terms of the applicable heading. The HTSUSA
provides for milk protein concentrates in 0404 as whey or
products of milk consisting of natural milk constituents, whether
or not containing added sugar or other sweetening matter and in
3501 as casein, caseinates and other casein derivatives.
Casein is the major protein in milk and is sometimes
referred to as "milk protein." It comprises about eighty percent
of the proteins in milk. Next to casein, lactalbumin is the
protein that occurs in the largest amount in milk. See L.
Lampert, Modern Dairy Products 40, 44 (1975).
The EN's to heading 3501 confirm that casein is the main
protein constituent of milk and also add, in pertinent part,
that:
[Casein] is obtained from skimmed milk by precipitation
(curdling), generally with acids or rennet. The
heading covers various types of casein which differ
according to the method of curdling, e.g., acid
caseinogen and rennet casein (paracasein).
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From the EN's it appears that 3501 includes only casein and
caseinates derived from casein. On the other hand, the EN's to
0404 explain, in pertinent part, that:
This heading...covers fresh or preserved products
consisting of milk constituents [e.g. milk enriched in
vitamins or mineral salts], which do not have the same
composition as the natural product, provided they are
not more specifically covered elsewhere. Thus the
heading includes products which lack one or more
natural milk constituents, milk to which natural milk
constituents have been added (to obtain, for example, a
protein-rich product). The powdered products of this
heading,...may contain small quantities of added
lactic ferments....
The skimmed milk, from which the product is derived, does not
undergo precipitation or curdling whereby casein is obtained (as
described in 3501), but rather undergoes chromatography whereby
lactose is removed. The level of the lactose to the milk
protein may then be adjusted in order to meet the needs of
individual consumers. The product, which consists of milk
constituents, does not maintain its natural composition due to
the chromatographic separation. However, it appears the EN's to
0404 provide for products which undergo such a process, to fit
the nutritional needs of its consumers, and which contain various
elements in addition to casein or its derivatives. Thus, the
product is classifiable in heading 0404.
Additional U.S. Note 2 to Chapter 4, HTSUSA explains that,
"[f]or purposes of subheading 0404.90.10, the term "milk protein
concentrates" means any complete milk protein (casein plus
lactalbumin) concentrate that is 40 percent or more protein by
weight." Since the product contains more than 40 percent protein
by weight, the applicable subheading is 0404.90.1000.
HOLDING:
The Milk Protein Concentrate (MPC 75) is classifiable in
subheading 0404.90.1000, HTSUSA as "[w]hey, whether or not
concentrated or containing added sugar or other sweetening
matter; products consisting of natural milk constituents, whether
or not containing added sugar or other sweetening matter, not
elsewhere specified or included: Other: Milk protein
concentrates." The general column one rate of duty is 0.44 cents
per kilogram.
Sincerely,
John Durant, Director
Commercial Rulings Division