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HQ 964523





June 4, 2002

CLA-2 RR:CR:GC 964523

CATEGORY: CLASSIFICATION

TARIFF NO.: 0404.90.1000

Mr. F. Gordon Lee
O'Connor & Hannan
Suite 500
1666 K Street, N.W.
Washington, D.C. 20006-2803

RE: New Zealand Milk Products; Milk Protein Concentrate Mixtures.

Dear Mr. Lee:

This is in response to a request for the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of products identified as milk protein concentrates produced by your client, New Zealand Milk Products (North America) Inc. The request was originally submitted to the Customs National Commodity Specialist Division, in New York, on March 2, 2000, by the law firm of Baker and McKenzie. The request was referred to this office for response. We regret the delay.

FACTS:

The three products identified by the importer as ALAPRO 4424, ALAPRO 4454, and ALAPRO 4430, are a spray-dried, ultrafiltrated milk protein concentrate made from pasteurized milk. Each of the products contains 42% or more protein by weight. The ALAPRO 4424 contains 24 – 28% fat, ALAPRO 4454 contains 28 – 34% fat, and the ALAPRO 4430 contains 34 – 38% fat. The lactose content is reduced as the fat content increases. The moisture content of each of the ALAPRO products is between 3 – 6%, and the ash content of each of the ALAPRO products is between 4 – 6%. The importer intends to import the product in commercial quantities.

In your submission you suggest the products are classified in subheading 0404.90.1000, HTSUS, as milk protein concentrates.

ISSUE:

What is the classification of ALAPRO, milk products containing over 42% protein by weight and between 24% and 38% milk fat?

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that virtually all 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.

The HTSUS provision under consideration is 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:

0404.90.10 00 Milk protein concentrates

Additional U.S. Note 13 to Chapter 4 reads as follows: "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."

Inasmuch as the ALAPRO products are within the scope of heading 0404 and meet the terms of U.S. note 13 as to milk protein content, they are classifiable in subheading 0404.90.1000, HTSUS. See HQ 965395, dated April 5, 2002.

HOLDING:

ALAPRO 4424, ALAPRO 4454, and ALAPRO 4430, each of which contains 42% or more milk protein, are classified in subheading 0404.90.1000, 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.

Sincerely,

John Durant, Director

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