Revocation of New York Ruling Letter (NYRL) B85847; Bovine Dried Colostrum

HQ 964528 November 21, 2000 CLA-2 RR:CR:GC 964528ptl CATEGORY: Classification TARIFF NO.: 0404.90.7000 Mr. Eugene Brown Brown’s Feeds Ltd. R.R. # 1 Clive, Alberta TOC OYO Canada RE: Revocation of New York Ruling Letter (NYRL) B85847; Bovine Dried Colostrum Dear Mr. Brown: In response to your letter dated May 5, 1997, Customs, National Commodity Specialist Division, New York, issued to you NYRL B85847 dated June 6, 1997, which held that a product described as “Headstart Bovine Dried Colostrum” was classified in the tariff rate quota provisions of subheadings 0402.21.30 and 0402.21.50, Harmonized Tariff Schedule of the United States (HTSUS), as milk and cream, concentrated not containing added sugar or other sweetening matter, in powder, granules or other solid forms, of a fat content, by weight, exceeding 3 percent but not exceeding 35 percent. NYRL B85847 no longer reflects the views of the Customs Service. Pursuant to section 625(c), Tariff Act of 1930, as amended (19 U.S.C. 1625(c)), notice of the proposed revocation of NY B85847 was published on October 18, 2000, in the Customs Bulletin, Volume 34, No. 41 & 42. No comments were received in response to the notice. FACTS: "Headstart Bovine Dried Colostrum” is described in NYRL B85847 as being comprised of spray dried, first and second milking colostrum from multiparous dairy cows. The ingredients are 54.8% protein, 19.7% fat, 14.8% lactose, 5% moisture, 0.01% sodium benzoate as a preservative, and bovine immunoglobulins (antibodies) G, M, and A. When added to water, it is used to feed newborn calves in order to provide passive transfer of antibodies. ISSUE: Whether the product as described is a dairy product consisting of natural milk classified in heading 0402 or as a product consisting of natural milk constituents classified in heading 0404, HTSUS. LAW AND ANALYSIS: The classification of imported merchandise under the HTSUS is governed by the principles set forth in the General Rules of Interpretation (GRI). GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section and chapter notes and, unless otherwise required, according to the remaining GRI’s, taken in their appropriate order. Accordingly, we first have to determine whether the articles are classified under GRI 1. We are satisfied that based on the following that the product is classified under GRI 1. Heading 0402, HTSUS, provides for milk and cream, concentrated or containing added sugar or other sweetening matter. We note that colostrum is different from the product that is commercially marketed as milk. For example, Lincoln M. Lampert, Modern Dairy Products (New York; Chemical publishing company, 1975, at page 14) defines colostrum thus: "Colostrum is the secretion of the mammary glands during the first few days of lactation after giving birth. It differs from normal milk in composition, flavor, and odor. The odor is strong and the flavor bitter....Normal composition of the milk occurs about five days after parturition ...Colostrum is very rich in globulins which serve as the carrier of antibodies which protect the suckling animal against diseaseproducing organisms." J.M. Frandsen, Dairy Handbook and Dictionary (Pennsylvania: Nittany Printing and Publishing Company, 1958), at page 457 reiterates Lampert's statement that colostrum differs from milk in composition, flavor, and odor thus: "Colostrum is thick and yellow, has a strong odor, a bitter taste, and contains a very high percentage of globulin…. In two to ten days colostrum milk usually changes to normal milk. Colostrum is believed to be especially rich in antibodies which protect the calf from diseases to which it would otherwise offer little or not resistance." The U.S. Food and Drug Administration, in its standards of identity for milk, articulates the definition of milk thus: "Milk is the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows" (21 CFR 131.110(a)). We conclude that colostrum is not the product that is commonly known and commercially sold as "milk" and therefore is precluded form classification in Heading 0402, HTSUS, which provides for milk and cream, concentrated or containing added sugar or other sweetening matter. Heading 0404, HTSUS 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. In our opinion, colostrum is not milk that is commercially sold as milk. It is composed entirely of natural milk constituents and it is not elsewhere specified or included in the tariff. Therefore, it is classified by virtue of GRI 1 in subheading 0404.90.70 (not a tariff rate quota provision) as other, other natural milk constituents, whether or not containing added sugar or other sweetening matter, not elsewhere specified or included. See HQ 963684 of this date concerning similar products. HOLDING: The product “Headstart Bovine Dried Colostrum” as described in NYRL B85847 is classified in subheading 0404.90.70 (not a tariff rate quota provision) as other, other natural milk constituents, whether or not containing added sugar or other sweetening matter, not elsewhere specified or included. NYRL B85847 is revoked. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin. Sincerely, John Durant, Director Commercial Rulings Division