CLA-2 CO:R:C:F 950915 LPF
Ms. Stella F. Alber
Vice-President, Imports
American Overseas Air Freight, Inc.
11034 South La Cienega Blvd.
Inglewood, CA 90304-1198
RE: Rice Protein Powder in heading 2106; Food preparation not
elsewhere specified or included.
Dear Ms. Alber:
This is in response to your letter of August 29, 1991,
submitted on behalf of Weinstein Chemicals, Inc., of Costa Mesa,
CA, requesting the proper classification of rice protein powder,
imported from Belgium, under the Harmonized Tariff Schedule of
the United States Annotated (HTSUSA).
FACTS:
A Customs laboratory report describes the product as an
amber powder composed 70-75 percent of protein, 8-12 percent
moisture, 6-11 percent fats and 2-6 percent carbohydrates. A
manufacturing flow chart indicates the product is a precipitate
derived from rice that has been steeped, milled, screened and
centrifuged which is then concentrated, dried, sieved and packed.
The powder will be used as a protein source in baby foods,
nutritional drinks and tablets although it is not intended for
consumption in its imported form.
ISSUE:
Whether the rice protein powder is classifiable in heading
2302 as bran, sharps (middlings) and other residues, derived from
the sifting, milling or other working of cereals or leguminous
plants; in 2106 as a food preparation; or in heading 3504 as a
peptone, protein substance or their derivatives.
-2-
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) taken in their
appropriate order provide a framework for classification of
merchandise under the HTSUSA. The majority of imported goods are
classified by application of GRI 1, that is, according to the
terms of the headings of the tariff schedule and any relative
section or chapter notes. The Explanatory Notes (EN's) to the
Harmonized Commodity Description and Coding System, which
represent the official interpretation of the tariff at the
international level, facilitate classification under the HTSUSA
by offering guidance in understanding the scope of the headings
and GRI's.
Heading 2302 provides for bran, sharps (middlings) and other
residues from the sifting, milling or working of cereals. The
EN's to 2302 indicate, in pertinent part, that the heading
includes bran or middlings (a granular product of grain milling).
The heading also covers residues from pre-milling operations such
as grains, seeds or fragments of cereal or of plants or plant
parts. Although the subject product, in part, is milled and
sieved, it is not a cereal residue. Thus, the product must be
classified elsewhere.
Heading 2106 provides for food preparations. The EN's to
2106 indicate that the heading covers, inter alia:
(A) Preparations for use, either directly or after
processing (such as cooking, dissolving or boiling in
water, milk, etc.), for human consumption.
(B) Preparations consisting wholly or partly of
foodstuffs, used in the making of beverages or food
preparations for human consumption. The heading
includes preparations consisting of mixtures of
chemicals (organic acids, calcium salts, lecithin,
etc.) with foodstuffs (flour, sugar, milk powder,
etc.), for incorporation in food preparations either as
ingredients or to improve some of their characteristics
(appearance, keeping qualities, etc.)....
-3-
(6) Protein hydrolysates consisting mainly of a
mixture of amino-acids and sodium chloride, used in
food preparations (e.g., for flavouring); protein
concentrates obtained by the elimination of certain
constituents of defatted soya-bean flour, used for
protein-enrichment of food preparations; soya-bean
flour and other protein substances, textured. Protein
isolates are excluded (heading 35.04)....
On the other hand, heading 3504 provides for peptones,
protein substances and their derivatives. The EN's to 3504
indicate that the heading includes, inter alia:
(A) Peptones and their derivatives....
(B) Other protein substances and their derivatives, not
covered by a more specific heading in the Nomenclature,
including in particular:
(1) Glutelins and prolamins (e.g., gliadins
extracted from wheat or rye, and zein extracted
from maize), being cereal proteins....
(4) Keratins....
In the past, Customs has distinguished between the products
classifiable in heading 2106 and 3504. The former has included
nutritional food products with proteins, nutritional elemental
diets and fortified food supplements. See Headquarters Ruling
Letters (HRL's) 088622, 085776 and 089455. The latter has
included sausage casings, protein hydrolysates which provide
products with certain textures and various protein extracts. See
HRL 085411 and New York Ruling Letters (NYRL's) 859904 and
860081.
In essence, 2106 covers products which serve as, or are
incorporated in, food preparations, while 3504 covers products
which are not usually consumed, but are used, for instance, in
making pharmaceuticals (peptones), textiles and plastics
(glutelins and prolamins) and elastic fibers (keratins). The
subject product is designed to be used as a protein source in
baby foods, nutritional drinks and tablets and, thus, is ejusdem
generis to the nutritional food products and supplements which
have been classified in heading 2106. Its principal use is as a
food preparation. See Additional U.S. Rule of Interpretation
1(a). As the EN's above stated, a product may still be
classified in 2106 even if it may require further processing to
be used as a food preparation or if it is merely used as an
ingredient in order to make or improve a beverage or food
preparation.
-4-
For these reasons, the rice protein powder is classifiable
in heading 2106. The applicable subheading is 2106.10.0000.
HOLDING:
The rice protein powder is classifiable in heading
2106.10.0000, HTSUSA, as "Food preparations not elsewhere
specified or included: Protein concentrates and textured protein
substances." The general column one rate of duty is 10 percent
ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division