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HQ 958639

May 6, 1996

CLA-2 RR:TC:FC 958639 JGH


TARIFF NO. : 3002.90.10

Port Director
U.S. Customs Service
P.O.Box 3726
Milwaukee, Wisconsin 53237-0260

RE: Decision on Application for Further Review of Protest 3701-95-100082, on the classification of Freeze Dried Lactococcus.

Dear Sir:

This protest was filed at your port on a 1995 entry of freeze-dried lactococcus, a product of France.


One product is described as a freeze-dried blend of selected strains of Lactococcus lactis subsp. lactis and Lactococcus lactis subsp. cremoris lactic acid-producing dairy bacteria, suspended in nonfat milk, lactose and autolyzed yeast. It is apparently used in the production of cheese. Another type was said to be used in the production of yogurt. It is noted that the products are commonly known as "Ferments." An APHIS permit described the product as being in a sealed foiled pouch and containing "EZAL" concentrate: "lyphollized (sic) lactic acid producing bacteria for mix fermentation - permit authorizes importation for cheese, buttermilk, sour cream, and yogurt manufacturing."

The import was entered and liquidated under the provision for lactic acid in subheading 2918.11.1000, HTSUS. It is now claimed that it should have been classified under the provision for ferments in subheading 3002.90.1000, HTSUS.


Classification of freeze-dried lactococcus under the Harmonized Tariff Schedule of the United States (HTSUS).


The products in issue are cultures of lactic-acid-producing bacteria of the type commonly used in the production of cottage cheese and yogurt.

The Explanatory Notes for Heading 2918 define lactic acid as being prepared by fermenting glucose or previously inverted cane-sugar with lactic ferment; very hygroscopic crystalline masses, or a dense, syrupy liquid, colourless or faintly yellow; included are lactic acid whether industrial, commercial or pharmaceutical. The Explanatory Notes for Heading 3002 state that included are ferments such as lactic ferments used in the preparation of milk derivatives (kephir, yogurt, lactic acid).


Freeze-dried lactococcus is classifiable under the provision for cultures of micro-organisms (excluding yeasts) and similar products: Ferments, in subheading 3002.90.1000, HTSUS.

You are directed to allow the protest in full. A copy of this decision should be furnished the protestant with the Form 19 Notice of Action.

In accordance with Section 3A(11)(b) of the Customs Directive 099 3550-65, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office 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 the mailing of the decision. Sixty days from the date of this decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.


John Durant, Director
Tariff Classification
Appeals Division

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