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HQ 087712


February 11, 1991

CLA-2 CO:R:C:F 087712 RFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 2102.20.2000; 2106.90.6099

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

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