[Federal Register Volume 67, Number 181 (Wednesday, September 18, 2002)]
[Notices]
[Pages 58837-58838]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-23757]


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DEPARTMENT OF THE TREASURY

Customs Service


Receipt of Domestic Interested Party Petition Concerning Tariff 
Classification of Dairy Protein Blends

AGENCY: United States Customs Service, Department of the Treasury.

ACTION: Notice of receipt of domestic interested party petition; 
solicitation of comments.

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SUMMARY: Customs has received a petition submitted on behalf of a 
domestic interested party requesting the reclassification under the 
Harmonized Tariff Schedule of the United States (HTSUS) of certain 
imported dairy protein blends. The petitioner contends that the 
imported dairy products are being mischaracterized as milk protein 
concentrates and have been incorrectly classified in subheading 
0404.90.1000 HTSUS, with a general rate of duty of 0.37[cent] per 
kilogram. Petitioner contends that the products are properly 
classifiable under various subheadings of heading 0402, HTSUS. This 
document invites comments with regard to the correctness of the current 
classification.

DATES: Comments must be received on or before November 18, 2002.

ADDRESSES: Written comments are to be addressed to the U.S. Customs 
Service, Office of Regulations & Rulings, Attention: Regulations 
Branch, 1300 Pennsylvania Avenue, NW., Washington, DC 20229. Submitted 
comments may be inspected at U.S. Customs Service, 799 9th Street, NW., 
Washington, DC, during regular business hours. Arrangements to inspect 
submitted comments should be made in advance by calling Mr. Joseph 
Clark at 202-572-8768.

FOR FURTHER INFORMATION CONTACT: Peter T. Lynch, General Classification 
Branch, 202-572-8778.

SUPPLEMENTARY INFORMATION:

Background

    This document concerns two Customs rulings on the tariff 
classification of certain imported dairy protein blends. The imported 
products that are the subject of the rulings are identified as being a 
``milk protein concentrate'' and have, according to the rulings, the 
following ingredients:
    Product 1: Lactose (42.2 percent, +/-0.5 percent), protein (41.5 
percent, +/-0.5 percent), ash (8.2 percent, +/-0.5 percent), moisture 
(4.1 percent, +/-0.3 percent), and fat (2.5 percent, +/-0.5 percent).
    Product 2: Protein (41 percent), fat (29 percent), minerals (7 
percent), and moisture (6 percent).
    A petition has been filed under section 516, Tariff Act of 1930, as 
amended (19 U.S.C. 1516), on behalf of American producers of dairy 
products that directly compete with the imported dairy blends 
requesting that Customs reclassify the imported products. Customs has 
classified these products under subheading 0404.90.1000, Harmonized 
Tariff Schedule of the United States (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'' 
which has a general duty rate of 0.37 cents per kilogram, and is not 
subject to a tariff-rate quota. The petition contends that these 
products are blends, i.e., mixtures of skim milk powder and other dry 
milk ingredients--such as ``milk protein concentrate''--created, at 
least in part, to circumvent the tariff rate quotas.
    Classification under the HTSUS is determined in accordance with the 
General Rules of Interpretation (GRI). GRI 1 provides that the 
classification of goods shall be determined 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 GRI may then be applied. The Harmonized 
Commodity Description and Coding System, Explanatory Notes (EN), 
represent the official interpretation of the Harmonized System at the 
international level (for the 4 digit headings and the 6 digit 
subheadings) and facilitate classification under the HTSUS by offering 
guidance in understanding the scope of the headings and the GRI. The 
EN, although not dispositive or legally binding, provide a commentary 
on the scope of each heading of the HTSUS, and are indicative of the 
proper interpretation of these headings. See T.D. 89-80, 54 FR 35127, 
35128 (August 23, 1989).
    Classification of dairy products is essentially based on the 
composition of the product. In the present case, direction is also 
provided by Additional U.S. Note 13 to Chapter 4, which states: ``For 
the 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.''
    In New York Ruling Letter (NY) 800374, dated July 27, 1994 and NY 
D83787, dated November 13, 1998, Customs classified two dairy products, 
both identified by the importer as ``milk protein concentrates,'' in 
subheading 0404.90.1000, HTSUS, as milk protein concentrates. Both 
products contain over 40 percent milk protein concentrate. 
Additionally, one product also contains a significantly higher 
percentage of fat than naturally occurs in milk. Unfortunately, neither 
ruling contains information about the method(s) used to produce either 
product, and the original files were lost in the destruction of the New 
York Customs House at the World Trade Center on September 11, 2001.
    Petitioner contends that neither of the products classified in 
those rulings should be classified in subheading 0404.90.1000, HTSUS. 
Petitioner contends that the expression ``complete milk protein'' in 
Additional U.S. Note 13 requires the presence of both casein and 
lactalbumin in the same, or very nearly the same proportion, relative 
to

[[Page 58838]]

each other, as they are naturally found in skim milk. Petitioner 
further contends that the term ``complete'' requires that the product 
be a unified protein complex that retains the functional properties of 
the proteins, including both casein and lactalbumin, as they occur in 
skim milk. Petitioner further contends that the term ``concentrate'' 
requires that the product have been concentrated--i.e., reduced in 
volume or bulk by the removal of liquids and other ingredients.
    In support of its position, petitioner refers to Customs rulings 
(HQ 052200, dated September 1, 1977 and HQ 070297, dated October 7, 
1982) and legislative history surrounding development of item 118.45, 
and its addition to the Tariff Schedules of the United States (TSUS), 
the predecessor to the HTSUS, in 1984, in section 123 of the Tariff and 
Trade Act of 1984 (Public Law 98-573, 98 Stat. 2955, October 30, 1984).
    Petitioner argues that the legislative history and early Customs 
rulings indicate that the tariff provision for ``milk protein 
concentrates'' was created to cover products that had been manufactured 
by means of an ultra-filtration process that isolates all the protein 
concentrates of non-fat dry milk (NFDM) (casein and lactalbumin) in a 
single protein complex, while retaining all of their functional 
properties.
    Petitioner states that the expression ``complete milk protein 
(casein plus lactalbumin) concentrate'' found in Additional U.S. Note 
13 ``was intended to cover dairy products (1) that are fully functional 
(unified) protein complexes, (2) that are undenatured, (3) that retain 
their functional properties after ultra-filtration, and (4) that are in 
concentrate form.''
    Petitioner maintains that the ultra-filtration process is the only 
one which produces a product that fits this standard, since the 
resulting milk protein concentrate product is what remains after the 
liquid and other ingredients have been removed from the skim milk by 
filtration. Petitioner argues that dairy protein blends contain various 
proteins that are not complete or whose functionality has been altered 
by processing, thus making the resulting product ineligible for 
classification in subheading 0404.90.1000, HTSUS.
    Petitioner asserts that dairy protein blends do not satisfy the 
definition found in Additional U.S. Note 13 to Chapter 4, HTSUS, and 
are properly classified as ``milk . . . in powder, granules or other 
solid forms,'' under subheading 0402.10. 0402.21, or 0402.29, HTSUS, 
depending on their fat content. As such, they would be subject to 
tariff rate quotas.

Comments

    Pursuant to section 175.21(a), Customs Regulations (19 CFR 
175.21(a)), before making a determination on this matter, Customs 
invites written comments on the petition from interested parties.
    The domestic party petition, as well as all comments received in 
response to this notice will be available for public inspection in 
accordance with the Freedom of Information Act (5 U.S.C. 552, section 
1.4, Treasury Department Regulations (31 CFR 1.4), and section 
103.11(b), Customs Regulations (19 CFR 103.11(b)), between the hours of 
9 a.m. and 4:30 p.m. on regular business days, at the U.S. Customs 
Service, Office of Regulations and Rulings, Regulations Branch, 5th 
Floor, 799 9th Street, NW., Washington, DC. Arrangements to inspect 
submitted comments should be made in advance by calling Mr. Joseph 
Clark at 202-572-8768.

    Authority: This notice is published in accordance with section 
175.21(a), Customs Regulations (19 CFR 175.21(a)), 19 U.S.C. 1516.

Robert C. Bonner,
Commissioner of Customs.
    Approved: September 13, 2002.
Timothy E. Skud,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 02-23757 Filed 9-17-02; 8:45 am]
BILLING CODE 4820-02-P