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NY I82187

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May 29, 2002

CLA-2-04:RR:NC:2:231 I82187

CATEGORY: CLASSIFICATION

TARIFF NO.: 0402.10.1000; 0402.10.5000; 0402.21.3000; 0402.21.5000; 0403.90.4110; 0403.90.4500; 0403.90.5100; 0403.90.5500; 0404.10.0500; 0404.10.5010; 0404.10.9000; 1702.19.0000

Mr. Jon Buhler
Hilton House Foods, Inc.
5719 Raleigh Legrange Road, Suite 6
Memphis, TN 38134

RE: The tariff classification of lactose, whey protein concentrate, nonfat dry milk powder, dried, sweet whey, dried buttermilk, and dried, whole milk from Germany.

Dear Mr. Buhler:

In your letter, dated April 16, 2002, you requested a tariff classification ruling.

The merchandise is described thus:

“Lactose Product.” The ingredients are 93-97 percent lactose (more than 95 percent lactose on a dry basis), 4-5 percent moisture, 3.0-3.5 percent ash, 1.8-6.0 percent protein, and 0.1-0.5 percent fat. The pH is 4.5-7.5. “Lactose Product” is obtained from whey. It has a lower sugar content than lactose. “Lactose Product” is produced by physical separation techniques such as precipitation, filtration, and dialysis. It is packaged in multiwall bags with polyethylene, inner liners or other closed containers (for example, tote bins). Applications include bakery products, confections, cheese items including spreads, frozen dessert, frozen food, canned food, and prepared dry mixes. Whey protein concentrate (WPC). The ingredients are 34-80 percent protein, 10-55 percent lactose, 4-8 percent ash, 3-4 percent moisture, and 1-10 percent fat. The pH is 6.0-6.7. Whey protein concentrate is obtained by removing non-protein constituents from pasteurized whey until the protein content of the finished, dry product is greater than or equal to 25 percent. Whey protein concentrate is produced by physical separation techniques such as precipitation, filtration, and dialysis. The acidity of whey protein concentrate may be controlled by the addition of pH adjusting ingredients. The product is packaged in multiwall bags with polyethylene, inner liners or other closed containers (for example, tote bins). Applications include dairy products, dry blends, wet blends, prepared dry mixes, soft drinks, special dietary food, infant food, bakery products, confections, and frozen dessert. Nonfat dry milk (NDM) in powder form. The ingredients are 49.5-52.0 percent lactose, 34-37 percent protein, 8.2-8.6 percent ash, 3-4 percent moisture, and 0.6-1.25 percent fat. Nonfat dry milk is obtained by the removal of water from pasteurized skim milk. It contains, by weight, not more than 5 percent moisture and not more than 1.5 percent milk fat. The product is packaged in multiwall bags with polyethylene, inner liners or other closed containers (for example, tote bins). Applications include fluid milk fortification, frozen dessert, cheese, yogurt, dairy beverages, bakery products, custard, gravy, sauces, frozen food, packaged dry mixes, processed meat, soup, infant formulæ, and snacks. Dry sweet whey. The ingredients are 63-75 percent lactose, 11.0-14.5 percent protein, 8.2-8.8 percent ash, 3.5-5.0 percent moisture, and 1.0-1.5 percent fat. Dry sweet whey is obtained by drying fresh whey that has been derived from the manufacture of cheese (for example, cheddar or Swiss). The originating fresh whey has been pasteurized and nothing has been added as a preservative. Dry sweet whey contains all of the constituent ingredients (except moisture), in the same relative proportion, as whey. The product is packaged in multiwall bags with polyethylene, inner liners or other closed containers (for example, tote bins). Applications include bakery products, process cheese products, frozen dessert, sauces, meat emulsions, salad dressing, beverages, confections, gravy, soup, meat products, and snacks. Dry buttermilk (DBM). The ingredients are 46.5-49.0 percent lactose, 30-33 percent protein, 8.3-8.8 percent ash, 4.5-7.0 percent fat, and 3-4 percent moisture. Dry buttermilk is obtained by drying liquid buttermilk that has been derived from the churning of butter and pasteurization prior to condensation. Dry buttermilk has a protein content that is a minimum of 30 percent. It neither contains, nor is derived from nonfat dry milk, dry whey or products other than buttermilk. It contains no added preservative, neutralizing agent or other chemical. The product is packaged in multiwall bags with polyethylene, inner liners or other closed containers (for example, tote bins). Applications include bakery products, frozen dessert, prepared, dry mixes, beverages, cheese products, frozen food, dairy products, salad dressing, and snacks. Dry whole milk (DWM). The ingredients are 36.0-38.5 percent lactose, 26.0-28.5 percent fat, 24.5-27.0 percent protein, 5.5-6.5 percent ash, and 2.0-4.5 percent moisture. Dry whole milk is obtained by the removal of water from pasteurized milk. The pasteurized milk may also have been homogenized. Dry whole milk may also be obtained by blending fluid, condensed or nonfat dry milk with liquid cream, dry cream or with fluid, condensed or dry milk. Dry whole milk contains, by weight, 26-39 percent milk fat on an “as is” basis and not more than 5 percent moisture on a milk solids-not-fat basis. It may be optionally fortified with vitamins A and/or D. The product is packed in multiwall bags with polyethylene, inner liners or other closed containers (for example, tote bins). It is also packaged in smaller sizes for retail sale. Applications include confectionery items, bakery products, packaged dry mixes, dairy products, soup, sauces, frozen food, and beverages.

The applicable subheading for “Lactose Product” (item 1) will be 1702.19.0000, Harmonized Tariff Schedule of the United States (HTS), which provides for other sugars, including chemically pure lactose, maltose, glucose and fructose, in solid form; sugar syrups not containing added flavoring or coloring matter; artificial honey, whether or not mixed with natural honey; caramel, lactose and lactose syrup, other. The rate of duty will be 6.4 percent ad valorem.

The applicable subheading for whey protein concentrate (item 2) will be 0404.10.0500, HTS, 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, whey and modified whey, whether or not concentrated or containing added sugar or other sweetening matter, modified whey, whey protein concentrates. The rate of duty will be 8.5 percent ad valorem.

The applicable subheading for nonfat dry milk in powder form (item 3), if entered under quota, will be 0402.10.1000, HTS, which provides for milk and cream, concentrated or containing added sugar or other sweetening matter, in powder, granules or other solid forms, of a fat content, by weight, not exceeding 1.5 percent, described in additional U.S. note 7 to chapter 4 and entered pursuant to its provisions. The rate of duty will be 3.3 cents per kilogram.

The applicable subheading for nonfat dry milk in powder form (item 3), if entered outside the quota, will be 0402.10.5000, HTS, which provides for milk and cream, concentrated or containing added sugar or other sweetening matter, in powder, granules or other solid forms, of a fat content, by weight, not exceeding 1.5 percent, other. The rate of duty will be 86.5 cents per kilogram. In addition, products classified in subheading 0402.10.5000, HTS, will be subject to additional duties based on their value, as described in subheadings 9904.04.22 – 9904.04.30.

The applicable subheading for dry sweet whey (item 4), if entered under quota, will be 0404.10.5010, HTS, 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, whey and modified whey, whether or not concentrated or containing added sugar or other sweetening matter, other, dried, described in additional U.S. note 12 to chapter 4 and entered pursuant to its provisions, articles for which an import license is required. The rate of duty will be 3.3 cents per kilogram.

The applicable subheading for dry sweet whey (item 4), if entered outside the quota, will be 0404.10.9000, HTS, 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, whey and modified whey, whether or not concentrated or containing added sugar or other sweetening matter, other, dried, other. The rate of duty will be 87.6 cents per kilogram. In addition, products classified in subheading 0404.10.9000, HTS, will be subject to additional duties based on their value, as described in subheadings 9904.05.20 – 9904.05.36.

The applicable subheading for dry buttermilk (item 5), if containing not over 6 percent by weight of butterfat and if entered under quota, will be 0403.90.4110, HTS, which provides for buttermilk, curdled milk and cream, yogurt, kephir and other fermented or acidified milk and cream, whether or not concentrated or containing added sugar or other sweetening matter or flavored or containing added fruit, nuts or cocoa, other, sour cream containing not over 45 percent by weight of butterfat; buttermilk, dried, containing not over 6 percent by weight of butterfat, described in additional U.S. note 12 to chapter 4 and entered pursuant to its provisions, articles for which an import license if required. The rate of duty will be 3.3 cents per kilogram.

The applicable subheading for dry buttermilk (item 5), if containing not over 6 percent by weight of butterfat and if entered outside the quota, will be 0403.90.4500, HTS, which provides for buttermilk, curdled milk and cream, yogurt, kephir and other fermented or acidified milk and cream, whether or not concentrated or containing added sugar or other sweetening matter or flavored or containing added fruit, nuts or cocoa, other, sour cream containing not over 45 percent by weight of butterfat; buttermilk, dried, containing not over 6 percent by weight of butterfat, other. The rate of duty will be 87.6 cents per kilogram. In addition, products classified in subheading 0403.90.4500, HTS, will be subject to additional duties based on their value, as described in subheadings 9904.05.20 – 9904.05.36.

The applicable subheading for dry buttermilk (item 5), if containing over 6 percent but not over 35 percent by weight of butterfat and if entered under quota, will be 0403.90.5110, HTS, which provides for buttermilk, curdled milk and cream, yogurt, kephir and other fermented or acidified milk and cream, whether or not concentrated or containing added sugar or other sweetening matter or flavored or containing added fruit, nuts or cocoa, other, sour cream containing not over 45 percent by weight of butterfat; buttermilk, dried, containing over 6 percent but not over 35 percent by weight of butterfat, described in additional U.S. note 8 to chapter 4 and entered pursuant to its provisions. The rate of duty will be 6.8 cents per kilogram.

The applicable subheading for dry buttermilk (item 5), if containing over 6 percent but not over 35 percent by weight of butterfat and if entered outside the quota, will be 0403.90.5500, HTS, which provides for buttermilk, curdled milk and cream, yogurt, kephir and other fermented or acidified milk and cream, whether or not concentrated or containing added sugar or other sweetening matter or flavored or containing added fruit, nuts or cocoa, other, sour cream containing not over 45 percent by weight of butterfat; buttermilk, dried, containing over 6 percent but not over 35 percent by weight of butterfat, other. The rate of duty will be $1.092 per kilogram. In addition, products classified in subheading 0403.90.5500, HTS, will be subject to additional duties based on their value, as described in subheadings 9904.04.31 – 9904.04.39.

The applicable subheading for dry whole milk (item 6), if entered under quota, will be 0402.21.3000, HTS, which provides for milk and cream, concentrated or containing added sugar or other sweetening matter, in powder, granules or other solid forms, of a fat content, by weight, exceeding 1.5 percent, not containing added sugar or other sweetening matter, of a fat content, by weight, exceeding 3 percent but not exceeding 35 percent, described in additional U.S. note 8 to chapter 4 and entered pursuant to its provisions. The rate of duty will be 6.8 cents per kilogram.

The applicable subheading for dry whole milk (item 6), if entered outside the quota, will be 0402.21.5000, HTS, which provides for milk and cream, concentrated or containing added sugar or other sweetening matter, in powder, granules or other solid forms, of a fat content, by weight, exceeding 1.5 percent, not containing added sugar or other sweetening matter, of a fat content, by weight, exceeding 3 percent but not exceeding 35 percent, other. The rate of duty will be $1.092 per kilogram. In addition, products classified in subheading 0402.21.5000, HTS, will be subject to additional duties based on their value, as described in subheadings 9904.04.31 – 9904.04.39.

For goods classified in subheadings 0402.10.1000, 0402.21.3000, 0403.90.4110, 0403.90.5100, and 0404.10.5010, an import license, issued to the importer by the United States Department of Agriculture, will be required at the time that such merchandise is entered for consumption into the United States.

Questions regarding licensing procedures and applications for licenses to import dairy products subject to quota should be addressed to:

Import Quota Manager for Dairy Products
STOP 1029/Room 5531-S
U.S. Department of Agriculture
1400 Independence Avenue, S.W.
Washington, DC 20250-1029

Importations of milk and milk products are subject to import regulations administered by various U.S. agencies. Requests for information regarding applicable regulations administered by the U.S. Food and Drug Administration may be addressed to that agency at the following locations:

Food and Drug Administration
Division of Import Operations and Policy
5600 Fishers Lane
Rockville, MD 20857

Requests for information regarding applicable regulations administered by the U.S. Department of Agriculture may be addressed to that agency at the following location:

A.P.H.I.S., Veterinary Services
Federal Building, Room 756
6505 Belcrest Road
Hyattsville, MD 20782

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Thomas Brady at (646) 733-3030.

Sincerely,

Robert B. Swierupski
Director

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See also:

• Tariff No.: 0402.10.10 - Milk & cream in powder granules/other solid forms fat content by weight not exceeding 1.5% whether/not sweetened, described in addl note 7
• Tariff No.: 0402.10.50 - Milk & cream in powder granules/other solid forms fat content by weight not exceeding 1.5% whether/not sweetened, nesi
• Tariff No.: 0402.21.30 - Milk & cream, concen, not sweetened, in powder/granules/oth solid forms, fat cont o/3% but not o/35%, subj to Ch 4 US note 7
• Tariff No.: 0402.21.50 - Milk & cream, concen, not sweetened, in powder/granules/oth solid forms, fat cont o/3% but not o/35%, not subj to GN15 or Ch 4 US.S. note 7
• Tariff No.: 0403.90.41 - Sour cream, dried, n/o 6% by wt. butterfat, subject to add. US note 12 to Ch. 4
• Tariff No.: 0403.90.45 - Sour cream, dried, n/o 6% by wt. butterfat, not subject to gen nte 15 or add. US note 12 to Ch. 4
• Tariff No.: 0403.90.51 - Sour cream, dried, o/6% but n/o 35% by wt. butterfat, subject to add. US note 8 to Ch. 4
• Tariff No.: 0403.90.55 - Sour cream, dried, o/6% but n/o 35% by wt. butterfat, not subject to gen nte 15 or add. US note 8 to Ch. 4
• Tariff No.: 0404.10.05 - Whey protein concentrates
• Tariff No.: 0404.10.50 - Whey (except modified whey), dried, whether or not conc. or sweetened, subject to add. US note 12 to Ch. 4
• Tariff No.: 0404.10.90 - Whey (except modified whey), dried, whether or not conc. or sweetened, not subject to gen. note 15 or add US nte 12 to Ch.4
• Tariff No.: 1702.19.00 - Lactose and lactose syrup containing by weight less than 99% lactose, calculated on the dry matter
• Tariff No.: 9904.04.22 - Dried milk, w/ or w/o sugar or sweetening matter in 0402.10.50 & 0402.21.25, entered in value safeguard period, under $0.20/kg
• Tariff No.: 9904.04.30 - Dried milk, w/ or w/o sugar or sweetening matter in 0402.10.50 & 0402.21.25, entered in quantity safeguard period
• Tariff No.: 9904.04.31 - Dried milk & cream, w/ or w/o sugar or sweetening matter in 0402.21.50 or 0403.90.55, entered in value safeguard period, under $0.15/kg
• Tariff No.: 9904.04.39 - Dried milk & cream, w/ or w/o sugar or sweetening matter in 0402.21.50 or 0403.90.55, entered in quantity safeguard period
• Tariff No.: 9904.05.20 - Dried milk & dried cream, w/ or w/o added sugar or sweetening, in 0403.90.45 entered in value safeguard period, under $0.20/kg
• Tariff No.: 9904.05.36 - Dried milk, cream & whey, w/ or w/o added sugar or sweetening, in 0403.90.45 & 0404.10.90 entered in quantity safeguard period