H280419

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H280419 December 7, 2020 OT:RR:CTF:FTM H280419 JER CATEGORY: Classification TARIFF NO.: 2106.10.00 Port Director U.S. Customs and Border Protection 301 E. Ocean Blvd., Suite 1400 Long Beach, CA 90802 Attn.: David Shaw, Supervisory Import Specialist RE: Internal Advice; tariff classification of rice protein powder Dear Port Director: This letter is in response to the request for internal advice, initiated by counsel on December 14, 2015, on behalf of [***] Foods, Inc. ([***] or “importer”) regarding the tariff classification of rice protein powder, marketed as [***] (“product”) under the Harmonized Tariff Schedule of the United States (“HTSUS”). Our decision is set forth below. The importer has asked that certain information submitted in connection with this internal advice request be treated as confidential. Inasmuch as this request conforms to the requirements of 19 C.F.R. § 177.2(b)(7), the request for confidentiality is approved. The information contained within brackets in this ruling or in the attachments to this ruling request, forwarded to our office, will not be released to the public and will be withheld from published versions of this ruling. FACTS: [***] is a low heat processed rice residue, which is enzymatically extracted from multiple layers of whole grain brown rice. It is produced in a multi-step process as follows: first, broken whole grain rice, or “middlings,” are gathered. These “middlings” are the product of either milling of the whole grain brown rice, or of polishing of the whole grain brown rice. The whole grain brown rice contains both carbohydrates and protein. The next step is the Hydrolyzed process used to obtain whole brown rice protein (40% to 60% concentrate). The organic enzymes (amylase) are added to the rice middlings to separate the protein from the carbohydrates (including fiber) present in the middlings through enzymatic hydrolysis and physical separation. This enzymatic hydrolysis splits the brown rice middlings into two substances: (1) rice syrup, which contains a high percentage of carbohydrates, and (2) feed grade rice residue, which contains a high percentage (approximately 70%) of rice protein. Next, is the Separation process, whereby the feed grade rice residue is separated from the rice syrup by a filtration press and only the feed grade rice residue (protein concentrate) is kept. Following the Separation process is the Drying process also referred to as the “Kill Step.” This is a kill step with the dual function of heat-inactivating any enzyme residue, consisting of the following steps: (a) The protein is washed, separated, dried and sterilized using a thermometer control, more than 80°C, time more than 2 hours. The protein concentrate is milled and sifted into the appropriate mesh; (b) Tested for microbial purity (Aerobic Plate Count, Yeast and Mold, E. coli, Coliforms and Salmonella); (c) If the concentrate passes it is ready for packaging; If it does not pass, then it goes through the kill step again; (d) Finally, the rice protein concentrate is packaged for retail. According to [***], [***] is sold as a bulk ingredient to be used as a protein-based nutritional supplement in food or feed products, as well as in beverages, infant formula, nutraceuticals and nutritional products, small animal nutrition, weight management products, and cosmetic products. The [***] is made up of fat, ash, carbohydrates, and fiber. The process for producing the 70 percent protein grade of [***] is as outlined above. If 80 or 90 percent protein grades are desired, the feed grade rice residue is worked again to separate additional amounts of carbohydrates, fat, and ash, until the desired amount of protein residue content is reached. The residue is then sieved, dried, milled, sifted, and packaged. The majority of the [***] imported by [***] to the United States is the 80 percent rice protein grade. On June 10, 2020, CBP received a supplemental submission from the importer regarding the subject product. In that submission, the importer discussed the meaning of the phrase “other workings” within the context of heading 2302, HTSUS, and included two articles discussing various types and methods of rice milling. On September 8, 2020, CBP held a meeting with Counsel for [***] to discuss the classification of the subject [***] rice protein. In response to that meeting, [***] a supplemental submission on October 27, 2020, which further detailed the manufacturing process of the [***] rice protein. In their October 2020 submission, [***] contends that at the stage where the product is a feed-grade rice protein residue – that it is ready for consumption. [***] asserts that “it is not marketed and sold in this state because its texture may not be completely optimal for certain applications to which it may be put.” [***] adds that at the feed-grade rice protein residue “should be free of pathogens at this stage and levels of contaminants like heavy metals are low. However, a presence of foreign matter sometimes may pose a risk to consumer if the size is >7 mm and thus the residue needs to be sifted.” [***] further stated that the enzymes (used to separate the proteins from the carbohydrates) are not themselves consumable or palatable. ISSUE: Whether the rice protein powder is properly classified under heading 2106, HTSUS, which provides for “food preparations not elsewhere specified or included” or under heading 2302, 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 cereals or of leguminous plants.” LAW AND ANALYSIS: Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (“GRIs”) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes. GRI 1 requires that classification be determined first 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 heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. The HTSUS headings at issue are as follows: 2106 Food preparations not elsewhere specified or included. 2106.10.00 Protein concentrates and texturized protein substances… * * * 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. * * * 2302.40.01 Of other cereals… 2302.40.01.05 Of rice… * * * The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTS and are thus useful in ascertaining the proper classification of the merchandise. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989). EN 21.06 provides, in pertinent part, as follows: Preparations for use, either directly or after processing (such as cooking, dissolving or boiling in water, milk, etc.), for human consumption. 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, etc.) with foodstuffs (flour, sugar, milk powder, etc.), for incorporation in food preparations either as ingredients or to improve some of their characteristics (appearance, kee

Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (“GRIs”) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes. GRI 1 requires that classification be determined first 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 heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. The HTSUS headings at issue are as follows:2106 Food preparations not elsewhere specified or included.2106.10.00 Protein concentrates and texturized protein substances… * * *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.* * *2302.40.01 Of other cereals…2302.40.01.05 Of rice…* * *The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTS and are thus useful in ascertaining the proper classification of the merchandise. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).EN 21.06 provides, in pertinent part, as follows:Preparations for use, either directly or after processing (such as cooking, dissolving or boiling in water, milk, etc.), for human consumption.Preparations consisting wholly or partly of foodstuffs, used in the making of beverages or food preparations for human consumption. The heading includes preparations c