HQ 0084146 - HRL 083307 affirmed. Modified diary powder. - United States International Trade Commision Rulings

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HQ 084146

August 3, 1989

CLA-2 CO:R:C:G 084146 JGH

CATEGORY: CLASSIFICATION

TARIFF NO.: 1901.90.4000

Mr. Bernard A. Trugman
Trugman-Nash, Inc.
90 West Street
New York, New York 10006

RE: HRL 083307 affirmed. Modified diary powder.

Dear Mr. Trugman:

Your letter of April 3, 1989, concerns Customs Headquarters Ruling 083307, dated March 13, 1989, on the classification on a modified dairy powder, TRU-PRO 224, under the Harmonized Tariff Schedule of the United States (HTSUS).

TRU-PRO, which is used in the baking industry, is said to be composed of 32.5 percent whey powder, 30 percent whole milk solids, 20 percent butter solids, and 17.5 percent sodium caseinate. The product was classified as a food preparation of goods of heading 0401 to 0404 in subheading 1901.90.4000, HTSUS, and subject to the quota restraints of subheading 9904.10.81, HTSUS.

We do not agree that TRU-PRO is not classifiable in subheading 1901 because the heading does not include mixtures; nor do we believe that since the product is not described in any one heading, GRI 3(b) requires that it must be classified according to its essential character, which you contend is the sodium caseinate.

The Explanatory Notes to the HTSUS are the official interpretation of the provisions on the international level. While the wording in heading 1901 may not include mixtures, it is clear from the examples provided in the Explanatory Notes that the preparations mentioned include mixtures. Our classification is based on TRU-PRO 224 being essentially a milk based product, since over 62 percent of its components are milk constituents, and while sodium caseinate and butter solids may not be found in milk as such, even in their modified form in the product, TRU-PRO remains a dairy product based on the milk constituents found in 0401 to 0404.

While an argument may be made for classification of this product under heading 2106, Other Food Preparations Not Elsewhere Specified Or Included, since the product is one based
on goods of 0401 to 0404, heading 1901 is the most specific. It is our view that sodium caseinate is but one of the ingredients in the mixture and there is no basis for considering it to the exclusion of the others.

TRU-PRO 224 is properly classified in subheading 1901.90.4000, HTSUS, the heading which most specifically describes it.

HQ 083307 is affirmed.

Sincerely,

John Durant, Director

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