
    510 F. 2d 376
    Western Dairy Products, Inc. v. The United States
    (No. 74-27, C.A.D. 1142)
    United States Court of Customs and Patent Appeals,
    February 13, 1975
    
      George Brows, Edward J. Farrell, attorneys of record, or appellant.
    
      
      Carla A. Bills, Assistant Attorney General, Andrew P. Vance, Chief, Customs Section, Steven P. Florsheim for the United States.
    [Oral argument on January 8, 1973 by George Bronz for appellant and by Steven P. Florsheim for appellee]
    Before Market, Chief Judge, Rich, Baldwin, Lane and Miller, Associate Judges.
    
   Maeket, Chief Judge.

This is an appeal from the judgment of the United States Customs Court, 72 Cust. Ct. 75, C.D. 4506, 373 F. Supp. 568 (1974), dismissing appellant’s challenge to the classification of ‘SAVOR-TEX’ CALCIUM EEDUCED DRIED SKIM MILK” (CRDSM). Appellant claims the merchandise to be properly classifiable under TSUS Item 182.95 as an edible product not otherwise provided for elsewhere in Schedule 1. The Customs Court found CRDSM to be classifiable as milk (TSUS, Item 115.50) or as an article of milk not specially provided for, (TSUS, Item 118.30). We affirm.

Statutes

Tariff Schedules of the United States:

General Headnotes and Rules of Interpretation:
9. Definitions. — For the purposes of the schedules, unless the context otherwise requires—
(f) the terms “of”, “wholly of”, “almost wholly of”, “in part of” and “containing”, when used between the description of an article and a material (e.g., “furniture of wood”, “woven fabrics, wholly of cotton”, etc.), have the following meanings:
(i) “of” means that the article is wholly or in chief value of the named material; * * * *
Schedule 1, Part 4:
Subpart A. — Milk and Cream
Subpart A headnote:
1. The term “milk and cream” as used in this sub-part, includes whole milk, skimmed milk, buttermilk, and cream, except cream described in subpart B of this part.
*****
Dried milk and cream:
Buttermilk containing not over 6 percent of butterfat_
Other:
Containing not over 3 percent of butterfat-115.50
Subpart D. — Other Milk Products
Whey:
118.00 Fluid_
118.05 Dried_
118.10 Yoghurt and other fermented milk_
118.15 Chocolate milk drink_
118.25 Ice cream_
118.30 Malted milk; and articles not specially provided for, of milk or cream_
Schedule 1, Part 15:
Subpart B. — Edible Preparations
Subpart B head-notes:
1. This subpart covers preparations fit for human consumption not provided for elsewhere in schedule 1.
* * * * M
Edible preparations not specially provided for (including prepared meals individually packaged):
*****
Other;
182.95 Other_

The MerchmuMse

The imported merchandise is prepared by passing ordinary liquid skim milk through a bed of ion exchange resin, adjusting the liquid’s pH as necessary, and finally removing the water, leaving CKDSM powder. The ion exchange resin removes some calcium ions from skim milk and replaces them with sodium ions. Thus CRDSM has more sodium and less calcium than skim milk.

We are told that the exchange of sodium for calcium ions causes the calcium phosphate-calcium caseinate complex found in skim milk to be converted into sodium caseinate, a water soluble protein. It is sodium caseinate which makes CKDSM useful as a meat fat emulsifier in sausage manufacture.

Issue

The sole question before us is whether the Customs Court erred in finding that CRDSM is insufficiently different from dried skim milk to preclude its classification as milk or as an article of milk not specially provided for.

OPINION

We agree with the Customs Court that CRDSM is properly classified under TSUS Item 118.30 as an article of milk not specially provided for. Accordingly, we find it unnecessary to reach the propriety of the alternative classification under TSUS Item 115.50.

Citing TSUS, General Headnote 9 (f) (i), supra, appellant urges that CRDSM is not an article “of milk” because it contains no milk; that it cannot therefore be wholly or in chief value of milk; that it is a distinct product, chemically created from skim milk and salt; that it has new properties and uses as well as an appearance in solution different from that of skim milk. The evidence indicates, however, that lactose is the largest component of both skim milk and CRDSM and that CRDSM differs chemically from dried skim milk only in the constituted amounts of calcium, sodium, and soluble protein. £2J All components of skim milk are thus contained in the imported product. Because the record is silent as to the relative component values, General Headnote 9 (f) (i) cannot be determinative of whether the merchandise is or is not an article of milk.

Appellee candidly admits that “[t]he meaning and scope of the term ‘milk,’ as it is used [“of milk”] in item 118.30, TSUS, is not entirely clear.” (appellee’s emphasis). To clarify that meaning and scope, appellee urges the application of the doctrine of noseitur a sooiis. See Nomura (America) Corp. v. United States, 62 Cust. Ct. 524, C.D. 3820, 299 F. Supp. 535 (1969), aff'd, 58 CCPA, 82, C.A.D. 1007, 435 F. 2d 1319 (1971). The Customs Court followed that approach. After examining the meaning of Items appearing in close proximity and relation to TSUS Item 118.30, the Customs Court concluded: . .

TSUS, and the legislative history of TSUS, offer additional support for the classification of CRDSM as an article of milk. “Whey” and “yogurt” are articles of milk specifically provided for (items 118.00, 118.05, and 118.10), in schedule 1, part 4, subpart D, wherein item 118.30 provides for all articles not specially provided for, of milk. Whey is the portion that remains after separation from the curd in the process that [sic] cheese is made from milk. Yogurt is a fermented milk product. (United States Tariff Commission, Summaries of Trade and Tariff Information (1968), Schedule 1, Yol. 4, pp. 6 and 145.) Both are made from milk that has been modified by a chemical change of sorts. Under the Tariff Act of 1930 whey, which has edible uses for human consumption and non-edible uses (1968 Summary, supra, p. 6), was classified under paragraph 1559 (the similitude provision) and yogurt, an edible preparation, under paragraph 1558 as a nonenumerated manufactured article. (Tariff Classification Study, Schedule 1, p. 54). The specific provisions for “whey” and “yogurt” thus indicate that schedule 1, part 4, subpait D, is intended to classify all articles wholly or in’Chief value of milk, be they nonedible preparations or edible preparations fo,r human consumption. The history of TSUS further points out that schedule 1, part 4, subpart D, is intended to bring together milk products widely separated in the Tariff Act of 1930 (paragraphs 1559 and 1558), including malted milk and “compounds of milk or cream” dutiable under paragraph 708 of the 1930 Act. (Tariff Classification Study, Schedule 1, p. 54.) Schedule 1, part 15, subpárt B, on the other hand, is a “basket” provision for edible preparations not specially provided for, covering products also previously classified under paragraphs 1558 and 1559 of the 1930 Act. (Tariff Classification Study, Schedule 1, p. 251.)

We agree with the above analysis. .CKDSM, whey, and yogurt are all products which result from a redistribution of some of the components of milk. Whether the redistribution is achieved chemically or otherwise is not determinative of the issue before us. The mustering of products analogous to CKDSM and classifiable under eo nomine provisions for milk-derived products, impels the conclusion that CKDSM is properly classified as an article of milk.  