CAL-2 RR:CR:GC 965396ptl
Mr. David M. Dunbar
Katten Muchin Zavis
525 West Monroe Street
Suite 1600
Chicago, IL 60661-3693
RE: Milk Protein Concentrate Blend
Dear Mr. Dunbar:
This is in response to your letter, dated January 25, 2002, on behalf of Kerry, Inc., resubmitting a request for the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of a milk protein concentrate blend.
FACTS:
You state that the product under consideration, a "milk protein concentrate," will be manufactured either by dry blending nonfat dry milk, whey protein concentrate 35 and fine, 90-mesh casein or by mixing condensed liquid skim milk with whey protein concentrate 35 and casein and then spray drying that mixture. The product will contain 76.2 percent nonfat dry milk, 15 percent casein, and 8.8 percent whey protein concentrate 35. On a dry basis, the imported milk protein concentrate will consist of 42 to 44 percent protein, 4 to 8 percent minerals, 44 to 47 percent lactose, 1.5 to 5 percent moisture and not more than one percent fat. Under both of the methods, the resulting product will be a homogeneous mixture which cannot be separated into its constituent ingredients by conventional methods. The product will be used in nutritional products, milk replacement products and similar industrial applications.
ISSUE:
What is the classification of the milk protein concentrate blend?
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that virtually all 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 GRIs may then be applied in order.
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The HTSUS provisions under consideration are as follows:
0404 Whey, 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:
* * *
0404.90 Other:
0404.90.1000 Milk protein concentrates
In its condition, as imported, the product will consist of dry powders, containing nonfat dry milk, casein and whey protein concentrates. It will be a mixture of milk and milk proteins. To classify this product, we look to the EN to heading 04.04 which provides, in relevant part, as follows:
"The heading also covers fresh or preserved products consisting of milk constituents, 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 instant product, although predominately nonfat dry milk, does not have the composition of nonfat dry milk, as provided for in heading 0402, HTSUS. It is the type of product described in the EN to heading 0404, HTSUS.
Since the product is a mixture of predominately milk constituents other than whey or modified whey, classification will be in subheading 0404.90, HTSUS, which provides for "Other" products of the heading.
Additional U.S. Note 13 to Chapter 4 provides:
"13. For purposes of subheading 0404.90.10, the term "milk protein concentrate" means any complete milk protein (casein plus lactalbumin) concentrate that is 40 percent or more protein by weight."
Taking this Note at face value, and inasmuch as the protein components of the instant product are all found in natural milk, and the weight of the protein component exceeds 40 percent of the mixture, the product is classified in subheading 0404.90.1000, HTSUS.
HOLDING:
A milk protein concentrate blend of 44-47 percent lactose, 42-44 percent protein, 4-8 percent minerals, 1.5-5 percent moisture, and not more than 1 percent fat is classified in subheading 0404.90.1000, HTSUS, which provides for: Whey, 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.
Sincerely,
John Durant, Director
Commercial Rulings Division