H315652

HQ H315652 March 21, 2024 OT:RR:CTF:FTM H315652 TJS/MJD CATEGORY: Classification TARIFF NO.: 2106.10.00 Mr. Lucas A. Rock Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, LLP 599 Lexington Avenue New York, NY 10022 RE: Modification of NY N308405; Tariff Classification of Rice Protein Powder Dear Mr. Rock: This is in reference to New York Ruling Letter (“NY”) N308405 issued to you, on behalf of Top Health Ingredients, Inc., on January 9, 2020, concerning the tariff classification of certain rice protein powder and pea protein powder under the Harmonized Tariff Schedule of the United States (“HTSUS”). In that ruling, U.S. Customs and Border Protection (“CBP”) classified the protein powders at issue under subheading 3504.00.50, HTSUS, which provides for “Peptones and their derivatives; other protein substances and their derivatives, not elsewhere specified or included; hide powder, whether or not chromed: Other.” Upon further review, we have found the classification of the rice protein powder under heading 3504, HTSUS, to be incorrect. For the reasons set forth below, we hereby modify NY N308405. FACTS: The product at issue is AdvantaRice™ Premier 300. It is a rice protein powder consisting of 80 percent or greater rice protein on a dry basis. The remaining 20 percent consists of residual materials of the protein extraction process such as ash, moisture, and fat. The rice protein powder does not contain additives. The manufacturing process begins with soaking rice flour, which is produced from milling rice. Then, an alkali solution is used to precipitate the protein. Once the excess amount of alkali solution is washed off, the product is sterilized, evaporated, and dried into powder form. The protein is imported in 20kg poly-lined paper bags and sold to food manufacturers for use as an ingredient in various food applications, which according to the importer’s website, include bars, chips, protein blends, RTD (ready-to-drink) beverages, and dips. The website further states that AdvantaRice™ has a “[m]ild, neutral flavor [that] is easily masked” and “can be used in both sweet and savory formulas.” Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625 (c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), notice of the proposed action was published in the Customs Bulletin, Volume 57, Number 32 on September 6, 2023. One comment was received in response to this notice, which we will address below. ISSUE: What is the tariff classification of the rice protein powder under the HTSUS? LAW AND ANALYSIS: Classification under the 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 2 through 6 may then be applied in order. The 2024 HTSUS provisions under consideration are as follows: 2106: Food preparations not elsewhere specified or included: 2106.10.00: Protein concentrates and textured protein substances… * * * 3504: Peptones and their derivatives; other protein substances and their derivatives, not elsewhere specified or included; hide powder, whether or not chromed: 3504.00.50: Other… * * * 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, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989). The ENs to heading 2106, HTSUS, provides in pertinent 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.) (see the General Explanatory Note to Chapter 38). … The heading includes, inter alia: … (6) Protein hydrolysates consisting mainly of a mixture of amino-acids and sodium chloride, used in food preparations (e.g., for flavouring); protein concentrates obtained by the elimination of certain constituents of defatted soya-bean flour, used for protein-enrichment of food preparations; soya-bean flour and other protein substances, textured. However, the heading excludes non-textured defatted soya-bean flour, whether or not fit for human consumption (heading 23.04) and protein isolates (heading 35.04). * * * The ENs to heading 3504, HTSUS, provides in pertinent part as follows: This heading covers: … (B) Other protein substances and their derivatives, not covered by a more specific heading in the Nomenclature, including in particular: Glutelins and prolamins (e.g., gliadins extracted from wheat or rye, and zein extracted from maize), being cereal proteins. Globulins, e.g., lactoglobulins and ovoglobulins (but see exclusion (d) at the end of the Explanatory Note). Glycinin, the main soya protein. Keratins obtained from hair, nails, horns, hoofs, feathers, etc. (5) Nucleoproteids, being proteins combined with nucleic acids, and their derivatives. Nucleoproteids are isolated, for example, from brewer’s yeast, and their salts (of iron, copper, etc.) are used mainly in pharmacy. However, nucleoproteids of mercury answering to a description in heading 28.52 are excluded. Protein isolates obtained by extraction from a vegetable substance (e.g., defatted soya bean flour) and consisting of a mixture of proteins contained therein. The protein content of these isolates is generally not less than 90%. * * * NY N308405 classified the rice protein powder in heading 3504, HTSUS, as “other protein substances and their derivatives, not elsewhere specified or included.” Heading 2106, HTSUS, covers food preparations, provided that the product is not covered by any other heading of the HTSUS. The issue here is whether the rice protein powder is classified as a protein substance of heading 3504, HTSUS, or as a food preparation of heading 2106, HTSUS. According to the ENs to heading 3504, HTSUS, and prior CBP rulings, substances that have been classified in heading 3504 have at least four things in common. First, these protein substances are generally for use in making pharmaceuticals, textiles, or plastics. See Headquarters Ruling Letter (“HQ”) 950915 (Apr. 3, 1992). Second, the protein substances consist of a very high percentage of protein. Third, the protein in substances of heading 3504 are derived from a single source, such as milk or wheat gluten. See HQ H053650 (June 1, 2009); HQ 963306 (Sept. 6, 2000). Lastly, the substances classified in heading 3504, HTSUS, may be mixtures of protein and other substances, such as ash and moisture, but these other substances are a product of the derivation of the protein substance from its source, not a deliberate preparation of different protein substances mixed with flavoring and anti-caking agents. See HQ H008628 (Feb. 14, 2008). The rice protein product under consideration is derived from a single source – rice – which is not mixed with other protein substances, flavoring, or anti-caking agents. Howe

Classification under the 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 2 through 6 may then be applied in order.  The 2024 HTSUS provisions under consideration are as follows:2106: Food preparations not elsewhere specified or included:2106.10.00: Protein concentrates and textured protein substances…* * *3504: Peptones and their derivatives; other protein substances and their derivatives, not elsewhere specified or included; hide powder, whether or not chromed:3504.00.50: Other…* * *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, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989). The ENs to heading 2106, HTSUS, provides in pertinent 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 charac