CLA-2 CO:R:C:F 089419 JGH
District Director of Customs
909 First Avenue
Seattle, Washington 98174
RE: Decision on Application for Further Review of Protest No.
3001-1-100012, on the classification of whey protein
concentrate, a product of New Zealand.
Dear Sir:
This decision concerns the tariff classification under the
Harmonized Tariff Schedule of the United States (HTSUS), of a
whey protein concentrate.
FACTS:
The merchandise was entered on August 30, 1990, under the
provision for lactalbumin in subheading 3502.90.10, HTSUS.
Customs classified it as whey protein concentrate in subheading
0404.90.50, HTSUS. An analysis of the entry was said to show:
protein content - 76.5%; moisture - 3.7%; milkfat - 4.0%;
lactose - 11.5%.
A Custom's laboratory was of the opinion that, after
examining the documents submitted from the New Zealand Dairy
Board on the entry, it was possible that the protein value could
be either 79.4% or 84% depending on the particular documents
relied on.
A Federal Register Notice (Vol. 55, No. 12) dated January
18, 1990, contained a notice of proposal by the International
Trade Commission to change subheading 3502, to reflect a protein
content for albumins of more than 80 percent.
- 2 -
ISSUE:
Whether the whey protein concentrate in question is
classifiable in subheading 0404.90.05, HTSUS, as whey protein
concentrates or in subheading 3502.90.10, HTSUS, as lactalbumin.
LAW AND ANALYSIS:
The explanatory notes to heading 3502 state that albumins
are animal or vegetable proteins used in the preparations of
foodstuffs, glues, pharmaceutical products, etc. Animal albumins
are considered the more important and include lactalbumins.
Under the prior tariff, the Tariff Schedules of the United
States (TSUS), to be classified as lactalbumin in item 190.15,
TSUS, whey protein concentrates would have to have a protein
content of 75 percent or more. Products containing under 75
percent protein were to be classified as whey protein concentrate
in item 118.35, TSUS.
Prior to the adoption of the HTSUS, consideration was given
by the Customs Co-operation Council to the protein content of
albumins in heading 3502, HTSUS. A proposal was made in July
1989 to define albumins as containing more than 80 percent whey
protein; this recommendation to become effective January 1, 1992.
In view of this recommendation on the international level,
Customs notified all of the ports in February 1990 that the
standard for lactalbumin would be changed from a minimum of 75
percent protein to 80 percent.
In behalf of the importer it is alleged that an established
and uniform practice existed at the time the HTSUS was adopted,
that to be classified as albumin a product had to have a 75
percent protein level. In addition, it is claimed that the entry
meets the 80% level, and, therefore, should be classified as
lactalbumin.
While the wording of the whey protein concentrate and
lactalbumin provisions may be similar both under the TSUS and
HTSUS, it is clear that the intent to change the definition as to
the protein content of albumins was made at the international
level prior to the adoption of the HTSUS by the United States.
Thus, Customs action in raising the protein level for lactalbumin
about the time the HTSUS went into effect merely reflected the
prevailing view on the subject, and the issue of whether or not
an established and uniform practice existed is moot. While the
documents submitted by the importer raised the question about the
protein content of the imports, it was not clear that they did,
in fact, have a protein level of 80 percent.
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However, in view of the proposal to require albumins of
heading 3502, HTSUS, to have a protein content of more than 80
percent as of January 1, 1992, it is concluded that the instant
merchandise since it may have had a protein content on a dry
basis of at least 79.4 percent should be classifiable as
lactalbumin in subheading 3502.90.10, HTSUS.
HOLDING:
While the provisions for lactalbumin under the TSUS and
HTSUS are similar, it is apparent that before the HTSUS was
adopted, there was an intent to raise the protein content for
lactalbumin both on the international and national level.
Therefore, since this product, which qualified as lactalbumin
under the TSUS, was entered during the period before the increase
protein was to take effect, it is concluded that the import is
lactalbumin under subheading 3502.90.10, HTSUS.
You are directed to allow the protest in full.
A copy of this decision should be provided the protestant
with the Form 19 Notice of Action.
Sincerely,
John Durant, Director
Commercial Rulings Division
hurley library
089419