HQ H251014
CLA-2 OT:RR:CTF:TCM H251014 TSM
Dave Shi
Profood International, Inc.
600 Industrial Dr., Suite 201
Naperville, IL 60563
RE: Reconsideration of N246780; Classification of pea dietary fiber powder
Dear Mr. Shi:
This letter is in reference to New York Ruling Letter (NY) N246780, issued to Profood International, Inc. on November 13, 2013, concerning the tariff classification of pea dietary fiber powder from China. In that ruling, U.S. Customs and Border Protection (“CBP”) classified the subject merchandise under subheading 1901.90.90, Harmonized Tariff Schedule of the United States (“HTSUS”), which provides for food preparations of flour, groats, meal, starch or malt extract, not containing cocoa or containing less than 40 percent by weight of cocoa calculated on a totally defatted basis, not elsewhere specified or included … other… other… other… other… other…other. In a letter dated November 19, 2013, you provided additional information regarding the production process of pea dietary powder and asked CBP to reclassify the product under subheading 2302.50.00, HTSUS, which provides for bran, sharps (middlings) and other residues, whether or not in the form of pellets, derived from the sifting, milling or other working … of leguminous plants. We have reviewed N246780 and found it to be correct. For the reasons set forth below we hereby affirm N246780.
FACTS:
On September 10, 2013 and October 1, 2013, Profood International, Inc. requested a tariff classification ruling for its pea dietary fiber powder from China. In the original ruling request, Profood International, Inc. stated that pea dietary fiber powder was made from yellow peas that undergo screening, washing, steeping, and crashing wherein liquid pea milk is separated from non-water soluble pea residues that are pea dregs. In its request for reconsideration, Profood International, Inc. provided a further explanation of the production process, stating that the originally provided definition of pea dietary fiber powder as the “powder made from peas wherein liquid pea milk is separated from pea dregs,” is incorrect. Rather, pea dietary fiber is the milled outer layer of the pea, or the non-water soluble pea residue, which is the pea “bran.”
Our research shows that pea dietary fiber is known in the industry as a “fraction” of the pea. Other fractions, such as pea protein and pea starch, are simultaneously processed into food preparations not at issue here.
http://www.northernpulse.com/ (last visited Febuary 4, 2015).
ISSUE:
Whether pea dietary fiber powder should be classified under subheading 1901.90.90, HTSUS, as “food preparations of flour or meal,” or under subheading 2302.50.00, HTSUS, as “other residues … derived from the sifting, milling or other working … of leguminous plants”?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (HTSUS) is made in accordance with the General Rules of Interpretation (GRI). 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 GRI may then be applied. In addition, in interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The HTSUS provisions under consideration are as follows:
1901 Malt extract, food preparations of flour, groats, meal, starch or malt extract, not containing cocoa or containing less than 40 percent by weight of cocoa calculated on a totally defatted basis, not elsewhere specified or included; food preparations of goods of headings 0401 to 0404, not containing cocoa or containing less than 5 percent by weight of cocoa calculated on a totally defatted basis, not elsewhere specified or included:
1901.90 Other:
Other:
Other:
Other:
Other:
1901.90.90 Other:
2302 Bran, sharps (middlings) and other residues, whether or not in the form of pellets, derived from the sifting, milling or other working of cereals or of leguminous plants:
2302.50.00 Of leguminous plants. . . .
The protestant claims that pea dietary fiber powder is classified under heading 2302, HTSUS, as other residues derived from the sifting, milling or other working of leguminous plants. The pea dietary fiber at issue consists of the milled outer layer of yellow peas, with individual flake dimensions between 40 and 100 mesh. In this regard we note that the Merriam-Webster dictionary defines “the outer covering of a fruit, grain, or seed” as “hull.” Merriam-Webster Online, retrieved on February 4, 2015, from http://www.merriam-webster.com/dictionary/hull. Pea hulls, in their original state as removed from the peas, may be classified under heading 2302, HTSUS, as residues derived from the working of leguminous plants. The Merriam-Webster dictionary defines “residue” as “a usually small amount of something that remains after a process has been completed or a thing has been removed.” Merriam-Webster Online, retrieved on February 4, 2015, from http://www.merriam-webster.com/dictionary/residue. However, the 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. See also, “Processing chart of pea dietary fibers,” accompanying the protestant’s request for reconsideration. 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.
Yellow peas, which are used for making the pea dietary fiber powder under consideration, are leguminous vegetables. However, they are not dried during the production process, which, according to the protestant’s statement in the original ruling request, entails screening, washing, steeping, and crashing wherein liquid pea milk is separated from non-water soluble pea residues. See also “Processing chart of pea dietary fibers,” accompanying the protestant’s request for reconsideration. In HQ 083352, dated October 17, 1989, CBP stated, in pertinent part, the following: “Since Chapter 19 does not set specific standards of what constitutes flour or meal, Customs has adopted the standards of Chapter 11, HTSUS. The standard sets forth parameters which limit the particle size of a product to determine if it can be labeled a flour or meal.” Note 3 to Chapter 11, HTSUS, states, in pertinent part, that for the purposes of heading 11.03, the terms “groats” and “meal” mean products obtained by the fragmentation of cereal grains, of which … in the case of cereal products other than maize (corn), at least 95% by weight passes through a woven metal wire cloth sieve with an aperture of 1.25 mm. The pea dietary fiber powder in this case meets this criteria, since the dimensions of the individual flakes are 40 to 100 mesh (0.149 mm to 0.400 mm). Accordingly, the instant merchandise is described by the terms of heading 1901, HTSUS, as a food preparation of flour. . . .not containing cocoa,” and is not excluded from the heading as dried legumes.
Lastly, this analysis comports with that in HQ 953322, dated April 21, 1993, in which CBP found that pea hulls that have been further processed by screening, cleaning, and grinding to a small particle size capable of passing through a screen with an aperture of 1.25 mm, resulted in a product classified under subheading 1901.90.90, HTSUS. Based on the foregoing, we conclude that the pea dietary fiber powder, as described, is classified in subheading 1901.90.90.
HOLDING:
By application of GRI 1, pea dietary fiber powder is classified under heading 1901, HTSUS. Specifically, it is classified under subheading 1901.90.90, HTSUS, as “food preparations of flour or meal.”
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at.www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N246780, dated November 13, 2013, is AFFIRMED.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division