H311471

HQ H311471 March 11, 2021 OT:RR:CTF:FTM HQ H311471 TSM CATEGORY: Classification TARIFF NO.: 2308.00.98 Center Director Agriculture and Prepared Products Center of Excellence and Expertise U.S. Customs and Border Protection 7141 Office City Drive Houston, TX 77087 Attn: Melanie L. Prater, Import Specialist Re: Protest and Application for Further Review No. 5301-19-101361; Tariff classification of a certain pea protein product. Dear Center Director: This is in reference to the Application for Further Review (“AFR”) of Protest No. 5301-19-101361, timely filed on or about November 13, 2019, on behalf of [ ] (hereinafter “Protestant”), regarding the tariff classification of certain pea protein product under the Harmonized Tariff Schedule of the United States (“HTSUS”). Protestant has asked that certain information submitted in connection with this protest 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 decision or in the attachments to this protest, forwarded to our office, will not be released to the public and will be withheld from published versions of this decision. FACTS: The merchandise at issue is a certain pea protein product, identified as [ ]. Protestant describes [ ] as follows: [ ] is a pea protein for pet food applications and not for human consumption. The pea protein results as a side stream product from the production of pea starch. After the starch separation of the suspended pea flour, the resulting fruit water solids are coagulated, separated, and dried. The subject protest covers one entry, entered on August 21, 2018, under subheading 2303.10.00, HTSUS, which provides for “Residues of starch manufacture and similar residues, beet pulp, bagasse and other waste of sugar manufacture, brewing or distilling dregs and waste, whether or not in the form of pellets: Residues of starch manufacture and similar residues.” The subject entry was liquidated on May 17, 2019, under subheading 2106.10.00, HTSUS, which provides for “Food preparations not elsewhere specified or included: Protein concentrates and textured protein substances.” In the protest, dated November 13, 2019, Protestant argues that the subject [ ] pea protein product is classified under subheading 2303.10.00, HTSUS, because it is a side stream, or residual product resulting from the production of pea starch. The manufacturing flow chart filed with the protest further clarifies that the [ ] pea protein product is one of the three products that result from the processing of yellow peas. The three products are pea starch, [ ] pea protein, and pea fiber. Protestant claims that [ ] is manufactured as an ingredient for pet food and feed formulations, and sold directly to large multinational pet food manufacturers, as well as through specialized distributors of materials for animal feed/pet food. Further, Protestant claimed that the product is presented in the form of a meal-like substance and described the processing steps as follows: (1) Peas are cleaned and washed to remove any visible dirt or metal contaminants; (2) Peas are milled, sieved and ground to remove the pea hulls, resulting in a pea flour; (3) The pea flour is washed and refined in a series of steps, resulting in a purified starch slurry that is dried into pea starch; (4) As a by-product of this process a “pea fruit water” is obtained; (5) The pea fruit water is then concentrated and coagulated using an acid to lower the pH, along with a heat treatment; (6) The coagulated solution is decanted and flash dried, and as a result cannot be metabolized by humans and is not suitable for human consumption per the FDA regulatory requirements for food ingredients. The following documents were also filed with the protest: (a) a food industry expert’s affidavit, certifying that the [ ] product is not fit for human consumption; (b) [ ] process flow diagram; and, (c) [ ] product specifications. In the protest, Protestant also claims that if classification under subheading 2303.10.00, HTSUS, is not appropriate, the [ ] product is alternatively classified under subheading 2308.00.98, HTSUS, which provides for “Vegetable materials and vegetable waste, vegetable residues and byproducts, whether or not in the form of pellets, of a kind used in animal feeding, not elsewhere specified or included: Other.” Protestant argues that heading 2308, HTSUS, is a suitable alternative classification, because this heading specifically covers residues and by-products resulting from industrial processing of vegetable materials for animal feed. ISSUE: What is the tariff classification of the pea protein product under consideration? LAW AND ANALYSIS: Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the entry. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)). Further Review of Protest No. 5301-19-101361 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 (a) because Protestant alleges that the decision against which the protest was filed is inconsistent with New York Ruling Letter (“NY”) 833556, dated December 5, 1988, and Headquarters Ruling Letter (“HQ”) H251014, dated March 20, 2015. Classification under the HTSUS is determined in accordance with the General Rules of Interpretation (“GRIs”). 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 GRIs 2 through 6 may then be applied in order. The 2019 HTSUS provisions under consideration are as follows: 2106 Food preparations not elsewhere specified or included * * * 2303 Residues of starch manufacture and similar residues, beet pulp, bagasse and other waste of sugar manufacture, brewing or distilling dregs and waste, whether or not in the form of pellets * * * 2308 Vegetable materials and vegetable waste, vegetable residues and byproducts, whether or not in the form of pellets, of a kind used in animal feeding, not elsewhere specified or included * * * In addition, in interpreting the HTSUS, the Explanatory Notes (“ENs”) of the Harmonized Commodity Description and Coding System may be utilized. The ENs to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). EN to heading 2106 provides in relevant part as follows: Provided that they are not covered by any other heading of the Nomenclature, this heading covers: 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, keeping qualities, etc.)… * * * EN to heading 2303 provides in relevant part as follows: This heading covers, inter alia: Residues of starch manufacture and similar residues (from maize (corn), rice, potatoes, etc.) consist largely of fibrous and protein substances 

Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the entry. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)). Further Review of Protest No. 5301-19-101361 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 (a) because Protestant alleges that the decision against which the protest was filed is inconsistent with New York Ruling Letter (“NY”) 833556, dated December 5, 1988, and Headquarters Ruling Letter (“HQ”) H251014, dated March 20, 2015. Classification under the HTSUS is determined in accordance with the General Rules of Interpretation (“GRIs”).  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 GRIs 2 through 6 may then be applied in order.  The 2019 HTSUS provisions under consideration are as follows: 2106 Food preparations not elsewhere specified or included* * *2303 Residues of starch manufacture and similar residues, beet pulp, bagasse and other waste of sugar manufacture, brewing or distilling dregs and waste, whether or not in the form of pellets* * *2308 Vegetable materials and vegetable waste, vegetable residues and byproducts, whether or not in the form of pellets, of a kind used in animal feeding, not elsewhere specified or included* * *   In addition, in interpreting the HTSUS, the Explanatory Notes (“ENs”) of the Harmonized Commodity Description and Coding System may be utilized. The ENs to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neithe