CLA-2 RR:TC:FC 959748K
Port Director
U.S. Customs Service
Port of New York-JFK Area
Building #77
Jamaica, New York 11430
RE: Application For Further Review of Protest No. 1001-96-105990;
"SoyLife", Soybean Flour
Dear Port Director:
The following is our response to the referral by your
office, dated September 17, 1996, of the request for
further review of the above-referenced protest. Our decision
follows.
FACTS:
The three consumption entries covering the imported
merchandise were liquidated on June 28 and July 26,
1996 , under the provision for other food preparations of flour
or meal, in subheading 1901.90.9095, Harmonized Tariff Schedule
of the United States (HTSUS), with a 1996 general rate of duty at
8.8 percent ad valorem. A timely protest under 19 U.S.C. 1514
was received on August 6, 1996. The protestant requested
reliquidation of the entries under the provision for flours and
meals of soybeans, in subheading 1208.10.00, HTSUS, with a 1996
general rate of duty at 2.6 percent ad valorem. The merchandise
consists of a product under the trade mark name of "SoyLife"
which is described as being produced in the following manner.
Soybeans are cleaned, cracked, subjected to moderate heat
treatment (an air temperature of 250 to 300 degrees Fahrenheit)
that inactivates the lipolytic enzymes, eliminates anti-nutrient
factors, and are cooled and milled to produce a full-fat flour.
It is stated that the merchandise is used as an ingredient in
dietary supplements, baked products like breads and cookies, and
drinks like milkshakes. It is neither manufactured nor used as a
coffee substitute.
.
ISSUE:
The issue concerns the heat treatment and whether the
merchandise, "SoyLife" is classified as a food preparation of
flour or meal or as flour or meal (of soybeans).
LAW AND ANALYSIS:
Heading 1208, HTSUS, provides for flours and meals of oil
seeds or oleaginous fruits, other than those of mustard, and
subheading provides for such flours and meals of soybeans.
Heading 1901, HTSUS, provides, in part, for food
preparations of flour and meal, and food preparations of flour
and or meal, not elsewhere provided for, are classified as other
food preparations in subheading 1901.90.9095, HTSUS. .
The Explanatory Notes (EN) to the Harmonized Commodity
Description and Coding System, which represent the official
interpretation of the tariff at the international level,
facilitate classification under the HTSUS by offering guidance in
understanding the scope of the headings and General Rules of
Interpretation of the HTSUS. The EN for Heading 1208, state as
follows:
This heading covers non-defatted or partially defatted
flours or meals obtained by grinding the oil seeds or
oleaginous fruits covered by headings 12.01 to 12.07. It
also includes flours and meals defatted and wholly or
partially refatted with their original oils (see Note 2 to
this Chapter).
Soybean seeds, whether or not broken , are classified in heading
1201.00.00, HTSUS. If the soybeans are roasted or cooked, they
are not classified in heading 1201.00.00, HTSUS, and are prepared
foods not covered in Chapter 12
The General EN Note for Chapter 12 also state as follows:
The seeds and fruits covered by the headings may be whole,
broken, crushed, husked or shelled. They may also have
undergone moderate heat treatment designed mainly to ensure
better preservation (e.g., by inactivating the lipolytic
enzymes and eliminating part of the moisture), for the
purpose of de-bittering or to facilitate their use. However,
such treatment is permitted only if it does not alter the
character of the seeds and fruits as natural products and
does not make them suitable for a specific use rather than
for general use. (Emphasis added.)
The protestant claims that to ensure better preservation,
the seeds are subject to moderate heat treatment at air
temperature of 250 to 300 degrees Fahrenheit that inactivates the
lipolytic enzymes, eliminates anti-nutrient factors like trypsin,
and de-bitters the soybeans. The protestant further claims that
the heat treatment does not make the soybeans suitable for a
specific use and would be classified in heading 1201.00.00,
HTSUS. Accordingly, when the heat treated soybeans are milled to
produce a full-fat flour for general use, the merchandise is
classified in
subheading 1208.10.00, HTSUS.
The National Commodity Specialist Division reports that the
purposes for the heat treatment, as described in the protest, is
in accordance with technical and industry sources for stabilizing
full-fat soy flour. Accordingly, we conclude that the soybeans
were not cooked or roasted.
HOLDING:
Soybean flour made by milling soybeans that were heat
treated at the moderate range of 250 to 300 degrees Fahrenheit
for purposes of stabilization and preservation, is classified in
subheading 1208.10.00, HTSUS, as flours of soybeans.
You are directed to allow the protest in full.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, Revised Protest Directive, dated August 4, 1993, a
copy of this decision attached to Customs Form 19, Notice of
Action, should be provided by your office to the protestant no
later than 60 days from the date of this decision and any
reliquidations of entries in accordance with this decision must
be accomplished prior thereto. Sixty days from the date of this
decision the Office of Regulations and Rulings will take steps to
make this 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.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division