CLA-2 RR:TC:FC 958639 JGH
TARIFF NO. : 3002.90.10
U.S. Customs Service
Milwaukee, Wisconsin 53237-0260
RE: Decision on Application for Further Review of Protest 3701-95-100082, on the classification of Freeze Dried Lactococcus.
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
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).
LAW & ANALYSIS:
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