OT:RR:CTF:FTM HQ H311471 TSM
Center Director
Agriculture and Prepared Products
Center of Excellence and Expertise
U.S. Customs and Border Protection
7141 Office City Drive
Houston, TX 77087
Attn: Melanie L. Prater, Import Specialist
Re: Protest and Application for Further Review No. 5301-19-101361; Tariff classification of a certain pea protein product.
Dear Center Director:
This is in reference to the Application for Further Review (“AFR”) of Protest No. 5301-19-101361, timely filed on or about November 13, 2019, on behalf of [ ] (hereinafter “Protestant”), regarding the tariff classification of certain pea protein product under the Harmonized Tariff Schedule of the United States (“HTSUS”).
Protestant has asked that certain information submitted in connection with this protest be treated as confidential. Inasmuch as this request conforms to the requirements of 19 C.F.R. § 177.2(b)(7), the request for confidentiality is approved. The information contained within brackets in this decision or in the attachments to this protest, forwarded to our office, will not be released to the public and will be withheld from published versions of this decision.
FACTS:
The merchandise at issue is a certain pea protein product, identified as [ ]. Protestant describes [ ] as follows:
[ ] is a pea protein for pet food applications and not for human consumption. The pea protein results as a side stream product from the production of pea starch. After the starch separation of the suspended pea flour, the resulting fruit water solids are coagulated, separated, and dried.
The subject protest covers one entry, entered on August 21, 2018, under subheading 2303.10.00, HTSUS, which provides for “Residues of starch manufacture and similar residues, beet pulp, bagasse and other waste of sugar manufacture, brewing or distilling dregs and waste, whether or not in the form of pellets: Residues of starch manufacture and similar residues.” The subject entry was liquidated on May 17, 2019, under subheading 2106.10.00, HTSUS, which provides for “Food preparations not elsewhere specified or included: Protein concentrates and textured protein substances.”
In the protest, dated November 13, 2019, Protestant argues that the subject [ ] pea protein product is classified under subheading 2303.10.00, HTSUS, because it is a side stream, or residual product resulting from the production of pea starch. The manufacturing flow chart filed with the protest further clarifies that the [ ] pea protein product is one of the three products that result from the processing of yellow peas. The three products are pea starch, [ ] pea protein, and pea fiber. Protestant claims that [ ] is manufactured as an ingredient for pet food and feed formulations, and sold directly to large multinational pet food manufacturers, as well as through specialized distributors of materials for animal feed/pet food. Further, Protestant claimed that the product is presented in the form of a meal-like substance and described the processing steps as follows: (1) Peas are cleaned and washed to remove any visible dirt or metal contaminants; (2) Peas are milled, sieved and ground to remove the pea hulls, resulting in a pea flour; (3) The pea flour is washed and refined in a series of steps, resulting in a purified starch slurry that is dried into pea starch; (4) As a by-product of this process a “pea fruit water” is obtained; (5) The pea fruit water is then concentrated and coagulated using an acid to lower the pH, along with a heat treatment; (6) The coagulated solution is decanted and flash dried, and as a result cannot be metabolized by humans and is not suitable for human consumption per the FDA regulatory requirements for food ingredients. The following documents were also filed with the protest: (a) a food industry expert’s affidavit, certifying that the [ ] product is not fit for human consumption; (b) [ ] process flow diagram; and, (c) [ ] product specifications.
In the protest, Protestant also claims that if classification under subheading 2303.10.00, HTSUS, is not appropriate, the [ ] product is alternatively classified under subheading 2308.00.98, HTSUS, which provides for “Vegetable materials and vegetable waste, vegetable residues and byproducts, whether or not in the form of pellets, of a kind used in animal feeding, not elsewhere specified or included: Other.” Protestant argues that heading 2308, HTSUS, is a suitable alternative classification, because this heading specifically covers residues and by-products resulting from industrial processing of vegetable materials for animal feed.
ISSUE:
What is the tariff classification of the pea protein product under consideration?
LAW AND ANALYSIS:
Initially, we note that the matter 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 of the entry. (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. 5301-19-101361 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 (a) because Protestant alleges that the decision against which the protest was filed is inconsistent with New York Ruling Letter (“NY”) 833556, dated December 5, 1988, and Headquarters Ruling Letter (“HQ”) H251014, dated March 20, 2015.
Classification under the HTSUS is determined in accordance with the General Rules of Interpretation (“GRIs”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The 2019 HTSUS provisions under consideration are as follows:
2106 Food preparations not elsewhere specified or included
* * *
2303 Residues of starch manufacture and similar residues, beet pulp, bagasse and other waste of sugar manufacture, brewing or distilling dregs and waste, whether or not in the form of pellets
* * *
2308 Vegetable materials and vegetable waste, vegetable residues and byproducts, whether or not in the form of pellets, of a kind used in animal feeding, not elsewhere specified or included
* * *
In addition, in interpreting the HTSUS, the Explanatory Notes (“ENs”) of the Harmonized Commodity Description and Coding System may be utilized. The ENs to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN to heading 2106 provides in relevant part as follows:
Provided that they are not covered by any other heading of the Nomenclature, this heading covers:
Preparations for use, either directly or after processing (such as cooking, dissolving or boiling in water, milk, etc.), for human consumption.
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, 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.)…
* * *
EN to heading 2303 provides in relevant part as follows:
This heading covers, inter alia:
Residues of starch manufacture and similar residues (from maize (corn), rice, potatoes, etc.) consist largely of fibrous and protein substances usually presented in the form of pellets or meal but occasionally as cake. They are used for animal fodder or as fertilisers; some of these residues (e.g., maize steeping liquors) are used in the production of cultures for the manufacture of antibiotics.
* * *
EN to heading 2308 provides in relevant part as follows:
Provided they are not included in any other more specific heading of the Nomenclature and are of a kind used in animal feeding, this heading covers vegetable products, vegetable waste, and residues and by products from the industrial processing of vegetable materials in order to extract some of their constituents.
It covers, inter alia:
Acorns and horse chestnuts.
Maize (corn) cobs after removal of the grain; maize (corn) stalks and leaves.
Beet or carrot tops.
Peelings of vegetables (pea or bean pods, etc.).
Waste of fruit (peel and cores of apples, pears, etc.) and fruit pomace and marc (from the pressing of grapes, apples, pears, citrus fruit, etc.), even if they may also be used for the extraction of pectin.
Bran obtained as a by product from the crushing of mustard seed.
Residues left after the preparation of coffee substitute (or extracts thereof) from cereal grains or other vegetable materials.
By products obtained by concentrating residual waters from citrus fruit juice manufacture, sometimes known as “citrus fruit molasses”.
Residues from the hydrolysis of maize (corn) cobs to obtain 2 furaldehyde, known as “hydrolysed ground corn cobs”.
The products of this heading may be in the form of pellets (see the General Explanatory Note to this Chapter).
* * *
Heading 2106, HTSUS, provides for “Food preparations not elsewhere specified or included.” Food preparations of heading 2106 are generally considered to be mixtures of ingredients to be used in or with foods intended for human consumption. This is illustrated by EN 21.06, supra, which lists several examples of ingredients used in the making of food preparations. The product at issue, [ ], is a residual non-food grade product resulting from the production of pea starch, which is presented in the form of a meal-like substance used in the production of animal feed. Moreover, consistent with the food industry expert’s affidavit, filed by the Protestant, the [ ] product is not fit for human consumption. Therefore, we find that the product at issue in not a “preparation consisting wholly or partly of foodstuffs, used in the making of beverages or food preparations for human consumption” within the meaning of the EN 21.06.
Heading 2303, HTSUS, provides for “Residues of starch manufacture and similar residues, beet pulp, bagasse and other waste of sugar manufacture, brewing or distilling dregs and waste, whether or not in the form of pellets.” We note that the term “residue” is not defined by the tariff. When the HTSUS does not define a particular tariff term, it is well settled that its definition is governed by “the term’s correct meaning [which] is its common or dictionary meaning in the absence of evidence to the contrary.” See Airflow Technology, Inc. v. United States, 524 F.3d 1287, 1291 (Fed. Cir. 2008) (citing to Russell Stadelman & Co. v. United States, 242 F.3d 1044, 1048 (Fed. Cir. 2001); see also Kahrs Int’l, Inc. v. United States, 713 F.3d 640, 644 (Fed. Cir. 2013). The term “residue” is defined as “something that remains after a part is taken, separated, or designated or after completion of a process: remnant; remainder.” Merriam-Webster Online, at http://www.merriam-webster.com/dictionary/residue (last visited, February 10, 2020). Protestant argues that HQ H251014, dated March 20, 2015, supports a finding that [ ] is a residue. Protestant points out that in that ruling CBP determined that pea dietary fiber is a fraction of a pea. Protestant further argues that fractions are classifiable under heading 2303, HTSUS.
In HQ H251014, CBP found in relevant part the following:
[T]he yellow peas are processed into three different products such that none can be considered a “residue” of the other. Furthermore, in its condition as imported, the merchandise consists of pea hulls that have been further processed by filtration, expansion drying, microwave sterilization and micronization to small flakes 40 to 100 mesh in size. … As a result of further processing, pea hulls are “refined” or “advanced” into a different product, pea dietary fiber powder, which can no longer be classified as a residue under heading 2302, HTSUS.
Upon review, we disagree that the [ ] product is classified under heading 2303, HTSUS, as a residue. Consistent with HQ H251014 and upon examination of the manufacturing flow chart filed by the Protestant, we find that [ ] is one of the three products resulting from the processing of yellow peas. However, even assuming, arguendo, that [ ] is a residual product resulting from the production of pea starch, it is not a residue within the meaning of heading 2303, HTSUS. The [ ] product is further advanced into a different product by coagulation and drying. Therefore, we find that heading 2303, HTSUS, does not describe this product.
Heading 2308, HTSUS, provides for “Vegetable materials and vegetable waste, vegetable residues and byproducts, whether or not in the form of pellets, of a kind used in animal feeding, not elsewhere specified or included.” The [ ] product is a vegetable material resulting from the processing of yellow peas, of a kind used in animal feeding as an ingredient for pet food and feed formulations. Upon review, we find that it is not included in any other more specific heading of the Nomenclature and is akin to the exemplars referenced by EN 23.08, supra, which lists several examples of vegetable materials used in animal feeding. Accordingly, we find that the
[ ] product is classified in heading 2308, HTSUS.
Based on the foregoing, we conclude that the [ ] product at issue is classified in heading 2308, HTSUS, and specifically in subheading 2308.00.98, HTSUS, which provides for “Vegetable materials and vegetable waste, vegetable residues and byproducts, whether or not in the form of pellets, of a kind used in animal feeding, not elsewhere specified or included: Other.”
HOLDING:
By application of GRIs 1 and 6, the [ ] product at issue is classified in subheading 2308.00.98, HTSUS, which provides for “Vegetable materials and vegetable waste, vegetable residues and byproducts, whether or not in the form of pellets, of a kind used in animal feeding, not elsewhere specified or included: Other.” The 2019 column one general rate of duty is 1.4%.
You are instructed to GRANT 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 of Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (“CROSS”) at https://rulings.cbp.gov/, which can be found on the CBP website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
For Craig T. Clark, Director
Commercial and Trade Facilitation Division