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HQ 950915


April 3, 1992

CLA-2 CO:R:C:F 950915 LPF

CATEGORY: CLASSIFICATION

TARIFF NO.: 2106.10.0000

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.

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.)....

(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.

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

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