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HQ 089419

December 12, 1991

CLA-2 CO:R:C:F 089419 JGH


TARIFF NO.: 3502.90.10

District Director of Customs
909 First Avenue
Seattle, Washington 98174

RE: Decision on Application for Further Review of Protest No. 3001-1-100012, on the classification of whey protein concentrate, a product of New Zealand.

Dear Sir:

This decision concerns the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS), of a whey protein concentrate.


The merchandise was entered on August 30, 1990, under the provision for lactalbumin in subheading 3502.90.10, HTSUS. Customs classified it as whey protein concentrate in subheading 0404.90.50, HTSUS. An analysis of the entry was said to show: protein content - 76.5%; moisture - 3.7%; milkfat - 4.0%; lactose - 11.5%.

A Custom's laboratory was of the opinion that, after examining the documents submitted from the New Zealand Dairy Board on the entry, it was possible that the protein value could be either 79.4% or 84% depending on the particular documents relied on.

A Federal Register Notice (Vol. 55, No. 12) dated January 18, 1990, contained a notice of proposal by the International Trade Commission to change subheading 3502, to reflect a protein content for albumins of more than 80 percent. ISSUE:

Whether the whey protein concentrate in question is classifiable in subheading 0404.90.05, HTSUS, as whey protein concentrates or in subheading 3502.90.10, HTSUS, as lactalbumin.


The explanatory notes to heading 3502 state that albumins are animal or vegetable proteins used in the preparations of foodstuffs, glues, pharmaceutical products, etc. Animal albumins are considered the more important and include lactalbumins.

Under the prior tariff, the Tariff Schedules of the United States (TSUS), to be classified as lactalbumin in item 190.15, TSUS, whey protein concentrates would have to have a protein content of 75 percent or more. Products containing under 75 percent protein were to be classified as whey protein concentrate in item 118.35, TSUS.

Prior to the adoption of the HTSUS, consideration was given by the Customs Co-operation Council to the protein content of albumins in heading 3502, HTSUS. A proposal was made in July 1989 to define albumins as containing more than 80 percent whey protein; this recommendation to become effective January 1, 1992. In view of this recommendation on the international level, Customs notified all of the ports in February 1990 that the standard for lactalbumin would be changed from a minimum of 75 percent protein to 80 percent.

In behalf of the importer it is alleged that an established and uniform practice existed at the time the HTSUS was adopted, that to be classified as albumin a product had to have a 75 percent protein level. In addition, it is claimed that the entry meets the 80% level, and, therefore, should be classified as lactalbumin.

While the wording of the whey protein concentrate and lactalbumin provisions may be similar both under the TSUS and HTSUS, it is clear that the intent to change the definition as to the protein content of albumins was made at the international level prior to the adoption of the HTSUS by the United States. Thus, Customs action in raising the protein level for lactalbumin about the time the HTSUS went into effect merely reflected the prevailing view on the subject, and the issue of whether or not an established and uniform practice existed is moot. While the documents submitted by the importer raised the question about the protein content of the imports, it was not clear that they did, in fact, have a protein level of 80 percent.

However, in view of the proposal to require albumins of heading 3502, HTSUS, to have a protein content of more than 80 percent as of January 1, 1992, it is concluded that the instant merchandise since it may have had a protein content on a dry basis of at least 79.4 percent should be classifiable as lactalbumin in subheading 3502.90.10, HTSUS.


While the provisions for lactalbumin under the TSUS and HTSUS are similar, it is apparent that before the HTSUS was adopted, there was an intent to raise the protein content for lactalbumin both on the international and national level. Therefore, since this product, which qualified as lactalbumin under the TSUS, was entered during the period before the increase protein was to take effect, it is concluded that the import is lactalbumin under subheading 3502.90.10, HTSUS.

You are directed to allow the protest in full.

A copy of this decision should be provided the protestant with the Form 19 Notice of Action.


John Durant, Director

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