CLA-2-CO:R:C:F 953322 K
TARIFF No.: 1901.90.9095
District Director
U.S. Customs Service
P.O. Box 610
Pembina, North Dakota 58271
RE: Application For Further Review of Protest No. 3401-93-100001;
Pea Bran Meal
Dear Sir:
In a memorandum dated January 19, 1993, the Assistant District
Director (CO) requested further review of the above-referenced
protest. Our decision follows.
FACTS:
The protest concerns merchandise that was entered on May 6,
1992, covered by two consumption entries that were liquidated on
October 9, 1992, and a timely protest was received on December 30,
1992.
The merchandise, Pea Bran Meal, is a product of Canada and
consists of green or yellow granular materials made by screening,
cleaning, and grinding of pea hulls to a small particle size
capable of passing through a screen with an aperture of 1.25
millimeters.
The position of the protestant is that the merchandise is
classifiable as residues derived from the sifting, milling or other
working of leguminous plants, subheading 2302.50.0000, Harmonized
Tariff Schedule of the United States (HTSUS), free of duty. The
entries were liquidated under the provision for other food
preparations of meal, subheading 1901.90.9095, dutiable at the
special rates of duty at 6 percent ad valorem.
ISSUE:
What is the proper classification of pea hulls that are
grinded to small particle size capable of passing through a
-2-
screen with an aperture of 1.25 millimeters?
LAW AND ANALYSIS:
Human food preparations of flour and meal are provided for
in heading 1901, HTSUS. The Explanatory Notes to the Harmonized
Commodity Description and Coding System (EN), a guideline for use
in determining classification under HTSUS, states that the "terms
`flour' and `meal' mean not only the cereal flour or meal of
Chapter 11 but also food flour, meal and powder of vegetable origin
of any Chapter...." However, it further states that "these terms
do not cover flour, meal or powder of dried vegetables (heading
07.12), dried potatoes (11.05), or of dried leguminous vegetables
(heading 11.06). Presidential Proclamation 6515, December 16,
1992, amended Note 2, Chapter 19, HTSUS, to conform with the EN to
read as follows;
2. For purposes of heading 1901, the terms "flour" and "meal"
means;
(a) Cereal flour and meal of chapter 11, and
(b) Flour, meal and powder of vegetable origin of
any chapter, other than flour, meal, or powder of
dried vegetables (heading 0712), of potatoes
(heading 1105), or of dried leguminous vegetables
(heading 1106). (Emphasis added.)
Pea hulls, the ingredient used to make the meal, are products
of vegetable origin but they are not vegetables. Accordingly, when
the hulls are reduced to flour or meal, the exclusionary Note 2,
Chapter 19, HTSUS is not applicable and heading 1901 may be
considered for classification of the meal.
A question arises whether the Pea Bran Meal qualifies as flour
or meal. In Headquarters Ruling Letter 083352, dated October 17,
1989, we stated that "since Chapter 19 does not set specific
standards of what constitutes flour or meal, Customs has adopted
the standards of Chapter 11, HTSUS." Note 3 of Chapter 11 sets
forth the particle size parameters for meal (other than corn) as
a product that "at least 95 percent by weight passes through a
woven metal wire cloth sieve with an aperture of 1.25 mm." The Pea
Bran Meal in this case meets this criteria.
Another question that arises is whether the Pea Bran Meal
qualifies as a food for human consumption. The protestant states
that the Pea Bran Meal is used as a constituent of dog food. The
protestant also states that it is used as an additive in bakery
goods and under the heading "General Properties", of a
specification sheet submitted by the protestant, the "Taste and
Odour" paragraph describes the Pea Bran Meal as a product that
"shall exhibit a clean mild aroma and flavour typical of dry peas
and free of all-odours. When baked into bread using an appropriate
recipe the loaf shall exhibit characteristic volume, crumb colour
-3-
and flavour." We are satisfied that the merchandise is for human
consumption.
The protestant claims that the Pea Bran Meal is classifiable
under subheading 2302.50.00, HTSUS, as other residues derived from
the sifting, milling or other working of leguminous plants. The
peas that are removed from the leguminous plants constitute the
vegetables. The hulls represent the residues. The hulls, as
residues, may be classifiable under subheading 2302.50.00 as the
residues derived from the working of leguminous plants and for
animal consumption. But, the merchandise in its condition as
imported does not consist of the hulls as residues. The
merchandise consists of hulls that have been further processed by
screening, cleaning, and grinding of the hulls to a small particle
size capable of passing through a screen with an aperture of 1.25
mm resulting in a product dedicated for human consumption such as
for use in bakery products.
Accordingly, we conclude that the Pea Bran Meal, as described,
is classifiable in subheading 1901.90.9095.
HOLDING:
Pea Bran Meal made from pea hulls by screening, cleaning, and
grinding processes so that the merchandise may pass through a
screen with an aperture of 1.25 millimeters that is dedicated for
use in human consumption, is classifiable in subheading
1901.90.9095, HTSUS, as food preparations of meal, dutiable at the
special rates of duty at 6 percent ad valorem.
You are directed to deny the protest in full. A copy of this
decision should be provided to the protestant with the copy of
Customs Form 19.
Sincerely,
John Durant, Director
Commercial Rulings Division