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HQ 959748




July 1, 1997

CLA-2 RR:TC:FC 959748K

CATEGORY: CLASSIFICATION

TARIFF NO.: 1208.10.00

Port Director
U.S. Customs Service
Port of New York-JFK Area
Building #77
Jamaica, New York 11430

RE: Application For Further Review of Protest No. 1001-96-105990; "SoyLife", Soybean Flour

Dear Port Director:

The following is our response to the referral by your office, dated September 17, 1996, of the request for further review of the above-referenced protest. Our decision follows.

FACTS:

The three consumption entries covering the imported merchandise were liquidated on June 28 and July 26, 1996 , under the provision for other food preparations of flour or meal, in subheading 1901.90.9095, Harmonized Tariff Schedule of the United States (HTSUS), with a 1996 general rate of duty at 8.8 percent ad valorem. A timely protest under 19 U.S.C. 1514 was received on August 6, 1996. The protestant requested reliquidation of the entries under the provision for flours and meals of soybeans, in subheading 1208.10.00, HTSUS, with a 1996 general rate of duty at 2.6 percent ad valorem. The merchandise consists of a product under the trade mark name of "SoyLife" which is described as being produced in the following manner.

Soybeans are cleaned, cracked, subjected to moderate heat treatment (an air temperature of 250 to 300 degrees Fahrenheit) that inactivates the lipolytic enzymes, eliminates anti-nutrient factors, and are cooled and milled to produce a full-fat flour. It is stated that the merchandise is used as an ingredient in dietary supplements, baked products like breads and cookies, and drinks like milkshakes. It is neither manufactured nor used as a coffee substitute.
.
ISSUE:

The issue concerns the heat treatment and whether the merchandise, "SoyLife" is classified as a food preparation of flour or meal or as flour or meal (of soybeans).

LAW AND ANALYSIS:

Heading 1208, HTSUS, provides for flours and meals of oil seeds or oleaginous fruits, other than those of mustard, and subheading provides for such flours and meals of soybeans.

Heading 1901, HTSUS, provides, in part, for food preparations of flour and meal, and food preparations of flour and or meal, not elsewhere provided for, are classified as other food preparations in subheading 1901.90.9095, HTSUS. .

The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and General Rules of Interpretation of the HTSUS. The EN for Heading 1208, state as follows:

This heading covers non-defatted or partially defatted flours or meals obtained by grinding the oil seeds or oleaginous fruits covered by headings 12.01 to 12.07. It also includes flours and meals defatted and wholly or partially refatted with their original oils (see Note 2 to this Chapter).

Soybean seeds, whether or not broken , are classified in heading 1201.00.00, HTSUS. If the soybeans are roasted or cooked, they are not classified in heading 1201.00.00, HTSUS, and are prepared foods not covered in Chapter 12

The General EN Note for Chapter 12 also state as follows:

The seeds and fruits covered by the headings may be whole, broken, crushed, husked or shelled. They may also have undergone moderate heat treatment designed mainly to ensure better preservation (e.g., by inactivating the lipolytic enzymes and eliminating part of the moisture), for the purpose of de-bittering or to facilitate their use. However, such treatment is permitted only if it does not alter the character of the seeds and fruits as natural products and does not make them suitable for a specific use rather than for general use. (Emphasis added.)

The protestant claims that to ensure better preservation, the seeds are subject to moderate heat treatment at air temperature of 250 to 300 degrees Fahrenheit that inactivates the lipolytic enzymes, eliminates anti-nutrient factors like trypsin, and de-bitters the soybeans. The protestant further claims that the heat treatment does not make the soybeans suitable for a specific use and would be classified in heading 1201.00.00, HTSUS. Accordingly, when the heat treated soybeans are milled to produce a full-fat flour for general use, the merchandise is classified in subheading 1208.10.00, HTSUS.

The National Commodity Specialist Division reports that the purposes for the heat treatment, as described in the protest, is in accordance with technical and industry sources for stabilizing full-fat soy flour. Accordingly, we conclude that the soybeans were not cooked or roasted.

HOLDING:

Soybean flour made by milling soybeans that were heat treated at the moderate range of 250 to 300 degrees Fahrenheit for purposes of stabilization and preservation, is classified in subheading 1208.10.00, HTSUS, as flours of soybeans.

You are directed to allow the protest in full.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, Revised Protest Directive, dated August 4, 1993, a copy of this decision attached to Customs Form 19, Notice of Action, should be provided by your office to the protestant no later than 60 days from the date of this decision and any reliquidations of entries in accordance with this decision must be accomplished prior thereto. Sixty days from the date of this decision the Office of Regulations and Rulings will take steps to make this decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

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