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HQ 953322


April 21, 1993

CLA-2-CO:R:C:F 953322 K

CATEGORY: CLASSIFICATION

TARIFF No.: 1901.90.9095

District Director
U.S. Customs Service
P.O. Box 610
Pembina, North Dakota 58271

RE: Application For Further Review of Protest No. 3401-93-100001; Pea Bran Meal

Dear Sir:

In a memorandum dated January 19, 1993, the Assistant District Director (CO) requested further review of the above-referenced protest. Our decision follows.

FACTS:

The protest concerns merchandise that was entered on May 6, 1992, covered by two consumption entries that were liquidated on October 9, 1992, and a timely protest was received on December 30, 1992.

The merchandise, Pea Bran Meal, is a product of Canada and consists of green or yellow granular materials made by screening, cleaning, and grinding of pea hulls to a small particle size capable of passing through a screen with an aperture of 1.25 millimeters.

The position of the protestant is that the merchandise is classifiable as residues derived from the sifting, milling or other working of leguminous plants, subheading 2302.50.0000, Harmonized Tariff Schedule of the United States (HTSUS), free of duty. The entries were liquidated under the provision for other food preparations of meal, subheading 1901.90.9095, dutiable at the special rates of duty at 6 percent ad valorem.

ISSUE:

What is the proper classification of pea hulls that are grinded to small particle size capable of passing through a
screen with an aperture of 1.25 millimeters?

LAW AND ANALYSIS:

Human food preparations of flour and meal are provided for in heading 1901, HTSUS. The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN), a guideline for use in determining classification under HTSUS, states that the "terms `flour' and `meal' mean not only the cereal flour or meal of Chapter 11 but also food flour, meal and powder of vegetable origin of any Chapter...." However, it further states that "these terms do not cover flour, meal or powder of dried vegetables (heading 07.12), dried potatoes (11.05), or of dried leguminous vegetables (heading 11.06). Presidential Proclamation 6515, December 16, 1992, amended Note 2, Chapter 19, HTSUS, to conform with the EN to read as follows;

2. For purposes of heading 1901, the terms "flour" and "meal" means;
(a) Cereal flour and meal of chapter 11, and (b) Flour, meal and powder of vegetable origin of any chapter, other than flour, meal, or powder of dried vegetables (heading 0712), of potatoes (heading 1105), or of dried leguminous vegetables (heading 1106). (Emphasis added.)

Pea hulls, the ingredient used to make the meal, are products of vegetable origin but they are not vegetables. Accordingly, when the hulls are reduced to flour or meal, the exclusionary Note 2, Chapter 19, HTSUS is not applicable and heading 1901 may be considered for classification of the meal.

A question arises whether the Pea Bran Meal qualifies as flour or meal. In Headquarters Ruling Letter 083352, dated October 17, 1989, we stated that "since Chapter 19 does not set specific standards of what constitutes flour or meal, Customs has adopted the standards of Chapter 11, HTSUS." Note 3 of Chapter 11 sets forth the particle size parameters for meal (other than corn) as a product that "at least 95 percent by weight passes through a woven metal wire cloth sieve with an aperture of 1.25 mm." The Pea Bran Meal in this case meets this criteria.

Another question that arises is whether the Pea Bran Meal qualifies as a food for human consumption. The protestant states that the Pea Bran Meal is used as a constituent of dog food. The protestant also states that it is used as an additive in bakery goods and under the heading "General Properties", of a specification sheet submitted by the protestant, the "Taste and Odour" paragraph describes the Pea Bran Meal as a product that "shall exhibit a clean mild aroma and flavour typical of dry peas and free of all-odours. When baked into bread using an appropriate recipe the loaf shall exhibit characteristic volume, crumb colour
and flavour." We are satisfied that the merchandise is for human consumption.

The protestant claims that the Pea Bran Meal is classifiable under subheading 2302.50.00, HTSUS, as other residues derived from the sifting, milling or other working of leguminous plants. The peas that are removed from the leguminous plants constitute the vegetables. The hulls represent the residues. The hulls, as residues, may be classifiable under subheading 2302.50.00 as the residues derived from the working of leguminous plants and for animal consumption. But, the merchandise in its condition as imported does not consist of the hulls as residues. The merchandise consists of hulls that have been further processed by screening, cleaning, and grinding of the hulls to a small particle size capable of passing through a screen with an aperture of 1.25 mm resulting in a product dedicated for human consumption such as for use in bakery products.

Accordingly, we conclude that the Pea Bran Meal, as described, is classifiable in subheading 1901.90.9095.

HOLDING:

Pea Bran Meal made from pea hulls by screening, cleaning, and grinding processes so that the merchandise may pass through a screen with an aperture of 1.25 millimeters that is dedicated for use in human consumption, is classifiable in subheading 1901.90.9095, HTSUS, as food preparations of meal, dutiable at the special rates of duty at 6 percent ad valorem.

You are directed to deny the protest in full. A copy of this decision should be provided to the protestant with the copy of Customs Form 19.

Sincerely,

John Durant, Director

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