Milk Protein Concentrate (MPC 75) in heading 0404, HTSUSA

HQ 950484 January 3, 1992 CLA-2 CO:R:C:F 950484 LPF CATEGORY: Classification TARIFF NO.: 0404.90.1000 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. -2- 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). -3- 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