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HQ 967521




December 9, 2005

CLA-2 RR:CTF:TCM 967521 ptl

CATEGORY: CLASSIFICATION

TARIFF NO.: 0404.90.10

Port Director
Customs and Border Protection
301 E. Ocean Blvd.
Suite 1400
Long Beach, CA 90802

RE: Protest 2704-04-101714, High Protein Concentrated Colostrum Powder

Dear Port Director:

The following is our decision on the protest filed by counsel against your classification of a product described as colostrum high protein powder under the Harmonized Tariff Schedule of the United States (HTSUS). The product was entered on January 23, 2004, and classified by the importer in subheading 0404.90.10, HTSUS, which provides for milk protein concentrates. The product was liquidated on April 30, 2004, and classified under subheading 0404.90.70, HTSUS, the residual subheading for the heading which provides for products consisting of natural milk constituents. Counsel for the importer filed a protest on the classification of the product on July 29, 2004, asserting that the product was correctly classified as entered.

FACTS:

The product, high protein colostrum powder, is described as being an 82 percent protein, by weight, colostrum protein concentrate product. It is manufactured from skim bovine colostrum by ultrafiltration and diafiltration. This process creates colostrum retenate which is then further concentrated by evaporation and then spray dried. The product is then packaged in polyethylene lined kraft paper bags for shipment.

Product specification sheets indicate that the product has protein composition of 82 percent by weight and a fat content of 1.3 percent. Because the product originates from colostrum, it has a much higher immunoglobulin content than regular milk. The processing removes the characteristic odor and flavor of natural colostrum.

ISSUE:

Whether high protein colostrum powder is classified as milk protein concentrate.

LAW AND ANALYSIS:

Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that most 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 GRIs may then be applied in order.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The subheadings under consideration are as follows:

0404 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:

0404.90 Other:
0404.90.1000 Milk protein concentrates

Other:

0404.90.7000 Other.

In HQ 964528, dated November 21, 2000, CBP (then the Customs Service) distinguished colostrum from milk as follows:

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 (sic) 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)).

Because of this analysis, colostrum was precluded from classification in heading 0402, HTSUS, which provides for “[m]ilk and cream, concentrated or containing added sugar or other sweetening matter.” However, it is still a product that is composed of milk constituents.

The ENs to heading 0404 state, in relevant part:

This heading also covers fresh or preserved products consisting of milk constituents, 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).

Since colostrum consists of milk constituents which are in different composition from “milk,” the product in HQ 964528, was classified in subheading 0404.90.70, HTSUS, a residual provision of heading 0404.

Protestant asserts that the instant product should be classified not as dried colostrum, in heading 0404.90.70, HTSUS, but as a milk protein concentrate in subheading 0404.90.10, HTSUS, because the product has been concentrated to achieve a particularly high protein content as opposed to having been merely dried. When considering that subheading, we must consider Additional U.S. Note 13 to Chapter 4 which reads as follows:

13. For purposes of subheading 0404.90.10, the term "milk protein concentrate" means any complete milk protein (casein plus lactalbumin) concentrate that is 40 percent or more protein by weight.

CBP interpreted this note in HQ 965592, dated April 1, 2003, as follows:

Upon consideration of the petition and the comments submitted, Customs agrees with the comments received that the Note does not restrict MPCs to any particular method of manufacture. Rather, the Note speaks to "any" complete milk protein concentrate which contains a specified protein percentage by weight. The use of the term "any" suggests that a broad rather than restrictive reading of the note was intended. The Note does require that the protein be "complete" which, according to the Note, requires that it contain casein and lactalbumin. However, the Note neither requires that the proteins be in the same proportion as they are found in milk, nor does it specify relative percentages of the protein components. It requires only that the source of the proteins be milk, that casein and lactalbumin be present, and that they constitute 40 percent or more, by weight, of the product.

Thus, CBP has determined that Note 13 refers to the amount of milk protein and not its source or relative percentage of the components of the protein. The instant colostrum product contains 82 percent, by weight, milk proteins. Therefore, by application of the above analysis, it is described by the terms of Additional U.S. Note 13, and is classifiable in subheading 0404.90.10, HTSUS, as a milk protein concentrate.

HOLDING:

High protein concentrated colostrum powder containing 82 percent, by weight, concentrated colostrum protein, is classified in subheading 0404.90.10, HTSUS, 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: Milk protein concentrates.” The 2004 duty rate was 0.37¢/kg.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.

The protest should be ALLOWED. In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director

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