CLA-2 CO:R:C:F 087712 RFC
Mr. Richard S. Hoffman
Morgan, Lewis & Bockius
1800 M Street, N.W.
Washington, D.C. 20036
RE: yeasts; autolysed yeast; food preparations; food flavors
Dear Mr. Hoffman:
This ruling letter is in response to your request of August
9, 1990, on behalf of Gist-Brocades Food Ingredients, Inc.,
concerning the tariff classification under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) of certain food
additives.
Please be advised that we are in receipt of your February 1,
1991, correspondence wherein you withdraw your request for
confidential treatment for the material submitted with your
ruling request. Therefore, no confidential treatment shall be
accorded this request.
FACTS:
There exist four products for which classification rulings
are sought. The products are identified as Gistex, Maxarome,
Rye, and Engevita. Gistex, Maxarome, and Rye consist of extracts
of yeast harvested through a process known as autolysis. On the
other hand, Engevita consists of an inactive yeast which is
produced by heat pasteurization, concentration, and drying. All
four products are stated to be used in food products as flavors
or flavor enhancers.
ISSUES:
(1) What is the proper tariff classification under the
HTSUSA of autolysed yeast?
(2) What is the proper tariff classification under the
HTSUSA of inactive yeast?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is governed
by the General Rules of Interpretation (GRIs). GRI 1 requires
that classification be determined first according to the terms of
the headings of the tariff (i.e., (1) merchandise is to be
classified under the four-digit heading that most specifically
describes the merchandise; (2) only four-digit headings are
comparable; and (3) merchandise must first satisfy the provisions
of a four-digit heading before consideration is given to
classification under a subheading within this four-digit heading)
and any relative section or chapter notes and, unless otherwise
required, then according to the remaining GRIs, taken in order.
A review of the classifications proposed in the ruling
request and of the schedule reveals that two chapters merit
consideration in the instant classification analysis: chapter 21
and chapter 35. Chapter 35 covers, among other things, enzymes.
Within this chapter, heading 3507 provides for enzymes and
prepared enzymes not elsewhere specified or included in the
schedule. Guidance concerning what constitutes "enzymes" for
purposes of classification under heading 3507 can be found in
the Explanatory Notes to this heading:
Enzymes are organic substances produced by living cells;
they have the property of causing and regulating specific
chemical reactions inside or outside living cells, without
themselves undergoing any change in their chemical
structure.
None of the four products for which rulings are sought has in any
manner the properties or characteristics of an "enzyme" as set
forth in this definition (i.e., none of the four products has
"the property of causing and regulating specific chemical
reactions" under any circumstances or conditions). Moreover,
this definition is consistent with other definitions of an
"enzyme." See Hawley's Condensed Chemical Dictionary 465 (1987)
(Enzymes are "...a unique class of proteins which catalyze a
broad spectrum of biochemical reactions."); Volume III The
Compact Edition of the Oxford English Dictionary 240 (1987)
(Enzymes are "[a]ny of the proteins produced by cells which
catalyse specific biochemical reactions."); Webster's Ninth New
Collegiate Dictionary 417 (1989) (Enzymes are "[a]ny of numerous
complex proteins that are produced by living cells and catalyze
specific biochemical reactions at body temperatures.").
Clearly, then, none of the four products is an enzyme. Therefore,
they are not properly classified under heading 3507.
Accordingly, the instant goods are not classified in chapter 35
as there exists no other heading in this chapter under which they
could be classified.
The second chapter that merits consideration in the instant
classification analysis is chapter 21. This chapter covers
miscellaneous edible preparations. Within this chapter, there
exist three headings under which one or more of the instant
products may be potentially classified: 2102, 2103 and 2106.
Heading 2102 provides for, among other things, inactive yeasts.
Guidance concerning what constitutes "inactive yeasts" for
purposes of classification under heading 2102 can be found in the
Explanatory Notes to this heading:
Inactive yeasts, obtained by drying, are generally brewery,
distillery or bakers' yeasts which have become
insufficiently active for further use in those industries.
They are used for human consumption...or for feeding
animals.
As discussed above, the product identified above as Engevita is
an inactive yeast which is intended for human consumption. In
light of the above, this product is provided for eo nomine or
specifically by the terms of heading 2102. Thus, it is properly
classified under this heading.
Heading 2103 is the second heading in chapter 21 in which
one or more of the instant products may be potentially
classified. This heading provides for "sauces and preparations
therefor; mixed condiments and mixed seasonings; mustard flour
and meal and prepared mustard." Guidance concerning what does
and does not constitute "sauces and preparations therefor" and
"mixed condiments and mixed seasonings" for purposes of
classification under heading 2103 can be found in the Explanatory
Notes to this heading:
[Heading 2103]...covers preparations, generally of a highly
spiced character, used to flavour certain dishes...and made
from various ingredients...[This] heading does not
cover...[a]utolysed yeast (heading 21.06) (emphasis in
original).
In light of the above, it is patently clear that none of the
remaining three products is described by the terms of heading
2103. Therefore, this heading is not a proper classification for
any of these products.
The final heading in chapter 21 in which the remaining three
products may be potentially classified is heading 2106. This
heading provides for food preparations not elsewhere specified or
included in the schedule. Guidance concerning what constitutes
a "food preparation" for purposes of classification under heading
2106 can be found in the Explanatory Notes to this heading. Note
(11) of the Explanatory Notes to heading 2106 identifies one type
of "food preparation" properly classified under heading 2106:
Autolysed yeast and other yeast extracts, products obtained
by the hydrolysis of yeast. These products cannot provoke
fermentation and they have a high protein value. They are
used mainly in the food industry (e.g., for the preparation
of certain seasonings).
As the products identified as Gistex, Maxarome, and Rye are
autolysed yeasts and are used in the food industry, they are
properly classified under heading 2106.
HOLDING:
The product identified above as Engevita is properly
classified under subheading 2102.20.2000, HTSUSA, which provides
for, among other things, yeasts (active or inactive), inactive
yeasts. The general rate of duty for goods entered under this
subheading is 10 percent ad valorem.
The products identified above as Gistex, Maxarome, and Rye
are properly classified under subheading 2106.90.6099, HTSUSA,
which provides for food preparations not elsewhere specified or
included, other, other, other, other, other, other, other, other,
other. The general rate of duty for goods entered under this
subheading is 10 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division