CLA-2 RR:CR:GC 965445ptl
Port Director
U.S. Customs Service
200 East Bay Street
Charleston, SC 29401
RE: Protest 1601-01-100414; Kosher Cheese Culture Media
Dear Port Director:
The following is our decision on Protest 1601-01-100414, filed by counsel on behalf of Lactalis Industrie, USA, against your classification of a product identified as kosher cheese culture media under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The goods under protest which are described by protestant as being "kosher cheese culture media" or "starter media," were imported under entry EQ5-xxxx463-2, on August 8, 2000, and classified in subheading 3501.90.6000, HTSUS, which provides for caseins, caseinates and other casein derivatives.
Customs Laboratory analysis indicates that the composition of the goods is: 81% milk protein, 9% moisture and 3% lactose (Report No. 4-2000-50394-001, dated December 1, 2000). A Supplemental Laboratory Report determined that the protein content of the goods was 79% on a weight basis (Report No. SV20000309S, dated April 12, 2002). Information provided by protestant shows the ingredients of the product, by weight, to be: 92% caseinate; 4% sweet whey powder; 3% phosphate salts; and 1% autolysed yeast.
The entry was liquidated on July 13, 2001, and the goods were reclassified in subheading 2106.90.9998, HTSUS, which provides for food preparations not elsewhere specified or included, other, …, other.
A timely protest was filed on October 10, 2001, in which counsel asserts the merchandise at issue is the same product which was the subject of New York Ruling Letter (NY) 896370, dated April 26, 1994.
In preparing this response, we have also considered supplemental materials provided by counsel on April 8th, May 8th, and May 29th, 2002.
ISSUE:
What is the classification of a product identified as kosher cheese culture media?
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 headings under consideration are as follows:
2106 Food preparations not elsewhere specified or included
* * *
2106.90 Other:
Other:
Other:
Other:
Other:
2106.90.99 Other:
2106.90.9998 Other
3501 Casein, caseinates and other casein derivatives; casein glues:
3501.10 Casein:
3501.90 Other:
* * *
3501.90.6000 Other
Counsel asserts that the product at issue, "kosher cheese culture media," is the same as the product which was the subject of NY 896370, dated April 26, 1994, which is identified as "hydrolyzed casein." Counsel argues that because the hydrolyzed casein of NY 896370 was classified in heading 3501, HTSUS, the kosher cheese culture media should also be classified therein. He further argues that his client had previously imported this product under subheading 3501 acting in reliance of the New York Ruling and that Customs had accepted those entries. Counsel contends that because Customs had accepted the earlier entries, it should be precluded from reclassifying the product.
Unfortunately, as counsel admits, NY 896370 was issued without providing any information regarding the composition of the product being classified. Whatever data about the product that may have existed was lost on September 11, 2001, when the New York Customs House at the World Trade Center was destroyed. Because we cannot definitely determine the composition of the product that was classified in NY 896370, we are unable to agree with counsel that the instant product is identical to that one. We do note that the two products, which are supposedly identical, are described differently by the producer. While not conclusive, this factor leads one to believe the two products are not actually identical.
Our decision with respect to the protest, will be determined by the composition of the kosher cheese culture media under protest. Counsel states that it is a caseinate. According to The Dictionary of Food Ingredients, Fourth Edition, 2001, at 32, "Caseinates" are: "Salts of casein that are produced by neutralizing acid casein to pH 6.7 with calcium or sodium hydroxide, producing the most common forms, which are calcium caseinate or sodium caseinate. … The caseinates provide a source of protein and function as emulsifiers, water binders, and whipping aids." Casein is the main protein constituent of milk.
As stated above, Customs Laboratory analysis of the product indicates that the composition of the goods is: 81% milk protein, 9% moisture and 3% lactose (Report No. 4-2000-50394-001). A Supplemental Laboratory Report determined that the protein content of the goods was 79% on a weight basis (Report No. SV20000309S). Counsel has provided information regarding the composition of the product, by weight, as being: 92% caseinate; 4% sweet whey powder; 3% phosphate salts; and 1% autolysed yeast. Depending on which analysis we accept, the protein content of the product ranges somewhere between 79% and 92%.
Heading 3501, HTSUS, provides for casein and casein derivatives. It does not provide for mixtures with casein as a component. Counsel argues that the phosphate salts have been added to the product as solubilizing agents and that they should not impact on the classification of the product in heading 3501. However, counsel's letters describe a product that is based on caseinate but is not itself a caseinate. It is a caseinate to which other ingredients have been added, creating a product dedicated to a specific use.
Counsel properly describes the creation of a caseinate – an acid or bacteria is added to raw milk, causing coagulation and the formation of curd, neutralized by salts and hydroxides. However, the imported kosher cheese culture media is a dry blend of several ingredients – caseinate, whey powder, phosphate salts, and autolyzed yeast. Even if we accept counsel's position that the phosphate salts added after drying the curd are merely solubilizing agents that do not impact on the classification of the product in chapter 35, we cannot extend that argument to the autolyzed yeast and whey powder.
Both of these ingredients are deliberately added to the prepared caseinate for their functional properties, to modify or enhance the capability of the caseinate to serve as a medium for the growth of a bacterial culture. Counsel's letter of May 29th acknowledges the functional properties of the whey powder, viz., "to help stimulate the bacterial growth." Autolyzed yeast is a substance with high protein value and many food uses. Noting that the product at issue is used as a medium on or in which a strain of bacteria will be grown, we conclude that the autolyzed yeast was added to the mixture as a functional ingredient to provide nutrients for the growth of the bacteria.
This addition of the whey powder and autolysed yeast has created a new product that is different from a casein of heading 3501 HTSUS, and cannot be classified therein. The addition of these ingredients has transformed the kosher cheese culture media into a food preparation that is used in the preparation of other foods for human consumption. Such product is classified in heading 2106, HTSUS.
HOLDING:
Kosher cheese culture media is classified in subheading 2106.90.99, HTSUS, which provides for food preparations not elsewhere specified or included; other … other.
The protest should be DENIED with respect to the classification of the product in accordance with the above holding. In accordance with Section 3A(11)(b) of Customs Directive 099 3550 065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Acting Director
Commercial Rulings Division