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NY L81459




April 4, 2005

CLA-2-35:RR:NC:SP:236 L81459

CATEGORY: CLASSIFICATION

TARIFF NO.: 0404.90.3000; 0404.90.5000; 3501.10.5000

Mr. Michael E. Roll
Pisani & Roll
1875 Century Park East, Suite 600
Los Angeles, CA 90067

RE: The tariff classification of acid casein products manufactured from reconstituted skim milk powder, buttermilk powder and from cheese fines

Dear Mr. Roll:

In your letter dated December 3, 2004, on behalf of Fonterra (USA), Inc., you requested a tariff classification ruling.

Your descriptive literature included component breakdowns for acid casein from skim milk powder, from buttermilk powder and from cheese fines. The component weight breakdowns submitted with your request show the composition of these products is, as follows:

The acid casein from skim milk was found to consist of 97.0 percent protein (dry basis), 11.5 percent moisture, 1.1 percent fat, 0.1 percent lactose, and 1.8 percent ash.

Acid casein from buttermilk powder was found to consist of 91.0 percent protein (dry basis), 11.5 percent moisture, 6.2 percent milk fat, 0.1 percent lactose and 1.6 percent ash.

Acid casein from cheese fines was found to consist of 89.3 percent protein (dry basis), 11.5 percent moisture, 8.0 percent milk fat, 0.1 percent lactose and 1.4 percent ash.

In the opinion of the CBP Laboratory at New York, the acid casein manufactured from reconstituted skim milk powder meets the U.S. standard and Codex Alimentarius standard for casein. Accordingly, we believe this product is included in heading 3501. HTS. However, the casein products manufactured from reconstituted buttermilk powder or from cheese fines do not meet either the U.S. or the international standards of identity for casein. Neither standard permits more than 2 percent fat in the finished product. In our opinion, casein-containing products with over 2 percent by weight of milk fat do not have the essential character of casein, and are provided for elsewhere in the tariff. Accordingly, the acid casein products produced from buttermilk powder and from cheese fines, as described above, since they consist of natural milk constituents, are classifiable in heading 0404. HTS.

The applicable subheading for the acid casein from skim milk will be 3501.10.5000, Harmonized Tariff Schedule of the United States (HTS), which provides for Casein, caseinates and other casein derivatives; Casein; Other. The rate of duty will be Free.

The applicable subheading for the casein products manufactured from buttermilk powder and from cheese fines, if entered under quota, will be 0404.90.3000, Harmonized Tariff Schedule of the United States (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, other, other, dairy products described in additional U.S. note 1 to chapter 4, described in additional U.S. note 10 to chapter 4 and entered pursuant to its provisions. The rate of duty will be 14.5 percent ad valorem.

The applicable subheading for the “Casein from buttermilk powder” milk protein and the “Casein from cheese fines” milk protein, if entered outside the quota, will be 0404.90.5000, 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, other, other, dairy products described in additional U.S. note 1 to chapter 4, other. The rate of duty will be $1.189 per kilogram, plus 8.5 percent ad valorem. In addition, products classified in subheading 0404.90.5000, HTS, will be subject to additional safeguard duties based on their value, as described in subheadings 9904.04.50 – 9904.05.01.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 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 Debra Wholey at 646-733- 3034.

Sincerely,

Robert B. Swierupski
Director,

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