CLA-2 OT:RR:CTF:TCM H089804 TNA
Port Director, New York Service Port
John F. Kennedy International Airport Bldg #77 Jamaica, NY 11430
Attn: Chief, Trade Operations Branch D
Re: Application for Further Review of Protest No: 4701-09-101072; Glucomannan Profine T flour
Dear Port Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 4701-09-101072, timely filed on October 5, 2009, on behalf of Aceto Corporation. The AFR concerns the classification of Glucomannan Profine T under the Harmonized Tariff Schedule of the United States (HTSUS). In reaching our decision, we have taken into consideration additional information supplied to staff of this office during a conference at our office on October 7, 2010.
FACTS:
The subject merchandise is known as “Profine T.” It consists of powdered glucomannan, which is also commonly known by its commercial designation, “konjac flour.” Glucomannan is a naturally occurring substance that is obtained from the tubers of the plant Amorphphallus Konjac. To produce the subject merchandise, konjac tubers are subjected to a heat treatment that includes washing, crushing in the presence of alcohol and water, purification, drying, and sieving. During this process, starch, water, protein, heavy metals, arsenic, sulfite, and other toxic substances are removed by the alcohol and water which is subsequently evaporated along with the toxins. The result is a refined flour that consists of 100% glucomannan, or konjac flour. It is used as a gelling agent, thickener, a film former, and stabilizer.
On August 8, 2008, the subject merchandise was entered under subheading 1212.99.91, HTSUS, which provides for: “Locust beans, seaweeds and other algae, sugar beet and sugar cane, fresh, chilled, frozen or dried, whether or not ground; fruit stones and kernels and other vegetable products (including unroasted chicory roots of the variety Cichorium intybus sativum) of a kind used primarily for human consumption, not elsewhere specified or included: other: other: other.” CBP liquidated the entry on September 25, 2009 in subheading 3913.90.20, HTSUS, as “Natural polymers (for example, alginic acid) and modified natural polymers (for example, hardened proteins, chemical derivatives of natural rubber), not elsewhere specified or included, in primary forms: other: Polysaccharides and their derivatives.”
The importer filed its protest and AFR on October 2, 2009, claiming classification under subheading 1106.20.90, HTSUS, which provides for “Flour, meal and powder of the dried leguminous vegetables of heading 0713, of sago or of roots or tubers of heading 0714 or of the products of chapter 8: Of sago or of roots or tubers of heading 0714: other;” or, in the alternative, under subheading 1212.99.91, HTSUS; or under subheading 1404.90.90, HTSUS, which provides for “Vegetable products not elsewhere specified or included: other: other.”
ISSUE:
Whether Glucomannan Profine T imported in the form of flour is classified under heading 1106, HTSUS, as “Flour, meal and powder of sago or of roots or tubers of heading 0714;” under heading 1212, HTSUS, as “fruit stones and kernels and other vegetable products (including unroasted chicory roots of the variety Cichorium intybus sativum) of a kind used primarily for human consumption, not elsewhere specified or included;” under heading 1404, HTSUS, as “Vegetable products not elsewhere specified or included”; or under heading 3913, HTSUS, as “Natural polymers (for example, alginic acid) and modified natural polymers (for example, hardened proteins, chemical derivatives of natural rubber), not elsewhere specified or included, in primary forms?”
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further Review of Protest No. 4701-09-101072 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or similar merchandise. Specifically, the Protestant argues that liquidation was inconsistent with HQ 085592, dated February 15, 1990.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order.
The 2008 HTSUS headings under consideration are the following:
1106 Flour, meal and powder of the dried leguminous vegetables of heading 0713, of sago or of roots or tubers of heading 0714 or of the products of chapter 8:
1106.20 Of sago or of roots or tubers of heading 0714:
1106.20.90 Other
* * * * * * * * * * * * *
1212 Locust beans, seaweeds and other algae, sugar beet and sugar cane, fresh, chilled, frozen or dried, whether or not ground; fruit stones and kernels and other vegetable products (including unroasted chicory roots of the variety Cichorium intybus sativum) of a kind used primarily for human consumption, not elsewhere specified or included:
Other:
1212.99 Other:
1212.99.91 Other
* * * * * * * * * * * * *
1404 Vegetable products not elsewhere specified or included:
1404.90 Other:
1404.90.90 Other
* * * * * * * * * * * * *
3913 Natural polymers (for example, alginic acid) and modified natural polymers (for example, hardened proteins, chemical derivatives of natural rubber), not elsewhere specified or included, in primary forms:
3913.90 Other:
3913.90.20 Polysaccharides and their derivatives
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The EN to heading 1106, HTSUS, states, in pertinent part, the following:
(B) Flour, meal and powder of sago or of roots or tubers of heading 07.14.
These products are obtained by the simple grinding or grating of the pith of the sago palm or of the dried roots of the manioc, etc. Some of these products are often subjected to heat treatment in the course of manufacture to eliminate toxic substances; this treatment may entail pregelatinisation of the starch.
The EN to heading 1212, HTSUS, states, in relevant part, the following:
(D) Fruit stones and kernels and other vegetable products (including unroasted chicory roots of the variety Cichorium intybus sativum) of a kind used primarily for human consumption, not elsewhere specified or included.
This group includes fruit stones and kernels and other vegetable products of a kind mainly used, directly or indirectly, for human consumption, but not elsewhere specified or included in the Nomenclature.
The EN to heading 1404, HTSUS, states, in relevant part, the following:
This heading covers all vegetable products, not specified or included elsewhere in the Nomenclature.
It includes:…
(F) Other vegetable products.
Protestant argues that the subject merchandise is classified in subheading 1106.20.90, HTSUS, as flour of sago or of roots or tubers of heading 0714, HTSUS. At the October 7 conference, Protestant described the manufacturing process of the subject merchandise in further detail, explaining that the alcohol and water that are added to merchandise are necessary to remove the toxins from the konjac root. Protestant added that only enough water and alcohol are added to ensure that the toxins are removed, and the water and alcohol evaporate during the manufacturing process, such that they no longer exist in the final product.
Merchandise that is classified in heading 1106, HTSUS, is permitted to undergo heat treatment to remove its toxins. See EN 11.06. In the present case, the subject merchandise, although it has underdone some manufacturing, has been processed in a manner that still allows its classification in heading 1106, HTSUS. Furthermore, courts have allowed trace amounts of alcohol to remain in a product without removing the merchandise from a heading where the presence of a larger amount might otherwise have required classification elsewhere. See, e.g., .W. Gresham v. United States, 3 Cust. Ct. 308; 1939 Cust. Ct. Lexis 1814.
Protestant argues, in the alternative, for classification in heading 1404.90.90, HTSUS, which provides for “vegetable products not elsewhere specified or included,” or in heading 1212, HTSUS, which provides for other vegetable products of a kind primarily used for human consumption. Both are residual provisions into which merchandise will be classified if it cannot be classified elsewhere. Because the subject merchandise is classified in heading 1106, HTSUS, it cannot be classified in heading 1404, HTSUS, or in heading 1212, HTSUS.
Furthermore, the port liquidated the subject merchandise in heading 3913, HTSUS, which provides for “Natural polymers (for example, alginic acid) and modified natural polymers (for example, hardened proteins, chemical derivatives of natural rubber), not elsewhere specified or included, in primary forms.” This, too, is a residual provision covering merchandise not classified elsewhere. As a result, even though the subject merchandise is a polysaccharide, which is provided for eo nomine in heading 3913, in cannot be classified here because it is classified elsewhere.
HOLDING:
By application of GRI 1, the Glucomannan Profine T is classified in heading 1106, HTSUS, and specifically in subheading 1106.20.90, HTSUS, which provides for “Flour, meal and powder of the dried leguminous vegetables of heading 0713, of sago or of roots or tubers of heading 0714 or of the products of chapter 8: Of sago or of roots or tubers of heading 0714: Other.” The column one, general rate of duty at the time of entry was free.
You are instructed to ALLOW the protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division