H322361

HQ H322361 November 21, 2023 OT:RR:CTF:FTM H322361 MJD CATEGORY: Classification TARIFF NO.: 2106.90.99 Mr. Richard Mojica Miller & Chevalier Chartered 900 16th Street NW Washington, DC 20006 Re: Reconsideration of NY N307210; Classification of Processed Brewer’s Saved Grains Dear Mr. Mojica: This is in reference to your correspondence, dated December 14, 2021, requesting reconsideration of New York Ruling Letter (“NY”) N307210, dated October 9, 2020, on behalf of your client, EverGrain Ingredients LLC (hereinafter “EverGrain”) of two types of products made from processed Brewer’s Saved Grains (“BSG”) under the Harmonized Tariff Schedule of the United States (“HTSUS”). After reviewing NY N307210, we have found that ruling to be in error. For the reasons set forth below, we are revoking NY N307210. You have asked that certain information submitted in connection with this request be treated as confidential, pursuant to 19 C.F.R. § 177.2(b)(7). Your request for confidentiality is approved. Specifically, the images and exhibits included in your submission will not be released to the public. 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. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed action was published on September 13, 2023, in Volume 57, Number 33, of the Customs Bulletin. No comments were received in response to this notice. FACTS: In NY N307210, the products were described as follows: The subject merchandise are BarleyVita Fibra and BarleyVita Pro. You have stated that both products are derived from brewing spent grains, barley and corn, respectively. The products, which are in powder form, are produced from drying and milling brewing or distilling dregs and waste. The products are separated into finer and coarser particles. BarleyVita Pro represents the former, and BarleyVita Fibra characterizes the latter. Both products will be sold for use as fiber and/or protein ingredients in baked goods and other food applications. NY N307210 also details U.S. Customs and Border Protection (“CBP”) New York laboratory findings on samples of the products via laboratory report # NY20191820, dated October 1, 2020, which provides as follows: Based on the laboratory review, the samples fail to meet the Chapter 11, Note 2(A) starch/ash content requirements for classification within that chapter of the Harmonized Tariff Schedule of the United States (HTSUS). However, the samples meet the Note 2(B) sieve-test requirement for flours of heading 1102. In your request for reconsideration, you explain that at the time the ruling request for NY N307210 was made, the products were named “BarleyVita Pro” and “BarleyVita Fibra,” and now they are named “EverVita Prima” and “EverVita Fibra,” respectively, (or “the EverVita products”). The EverVita products are made from BSG, specifically the BSG of barley and corn. BSG are the by-product of the beer brewing process. To create the EverVita Prima and EverVita Fibra, the BSG are dried using a ring drying technology during which hot air gets passed through the BSG and removes moisture so that the moisture content is less than 10 percent. Then the BSG are milled using a pin mill technology which helps to make a non-homogenous particle size distribution. Lastly the BSG are fractionated using air classification which separates the milled product into two fractions, one with smaller and lighter particles (“EverVita Prima”) and one with larger and heavier particles (“EverVita Fibra”). Afterwards the two products are packed into 20kg bags and palatalized. The EverVita Prima consist of more than 33 percent protein and more than 35 percent natural dietary fiber. It can be used as a fiber/protein additive and used in baking and other food applications. The EverVita Fibra contain as least 55 percent natural dietary fiber and 15 percent protein. It is used a fiber/protein additive in snacks and other food applications. Neither the EverVita Prima nor the EverVita Fibra can be consumed as is and must be added to other ingredients and cooked to be edible. In NY N307210, CBP classified the EverVita products under heading 1102, HTSUS. Specifically, the BarleyVita Fibra (now “EverVita Fibra”) was classified in subheading 1102.20.0000, HTSUS Annotated (“HTSUSA”), which provides for “Cereal flours other than of wheat or meslin: Corn (maize) flour,” and the BarleyVita Pro (now the “EverVita Prima”) was classified in subheading 1102.90.6000, HTSUSA, which provides for “Cereal flours other than of wheat or meslin: Other: Other: Other.” According to your submission, you argue that the EverVita products are classified in subheading 2303.30.0000, HTSUSA, 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: Brewing or distilling dregs and waste.” ISSUE: What is the tariff classification of the EverVita Prima and the EverVita Fibra? LAW AND ANALYSIS: Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI’s). 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 may then be applied. The 2023 HTSUS provisions under consideration are as follows: 1102 Cereal flours other than of wheat or meslin: * * * 2106 Food preparations not elsewhere specified or included: * * * 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: * * * 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: * * * Note 2 to Chapter 11, HTSUS, provides in pertinent part: (A) Products from the milling of the cereals listed in the table below fall within this chapter if they have, by weight on the dry product: A starch content (determined by the modified Ewers polarimetric method) exceeding that indicated in column (2); and An ash content (after deduction of any added minerals) not exceeding that indicated in column (3). Otherwise, they fall in heading 2302. However, germ of cereals, whole, rolled, flaked or ground is always classified in heading 1104. (B) Products falling within this chapter under the above provisions shall be classified in heading 1101 or 1102 if the percentage passing through a woven metal wire cloth sieve with the aperture indicated in column (4) or (5) is not less, by weight, than that shown against the cereal concerned. Otherwise, they fall in heading 1103 or 1104. 
 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: (A) Preparations for use, either directly or after processing (such as cooking, dissolving or boiling in water, milk, etc.), for human consumption. (B) Preparations consisting wholly or partly of foodstuffs, used in the making of beverages or food preparations for human consumption. The heading inclu

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI’s). 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 may then be applied. The 2023 HTSUS provisions under consideration are as follows:1102 Cereal flours other than of wheat or meslin:* * *2106 Food preparations not elsewhere specified or included:* * *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:* * *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: * * *Note 2 to Chapter 11, HTSUS, provides in pertinent part: (A) Products from the milling of the cereals listed in the table below fall within this chapter if they have, by weight on the dry product:A starch content (determined by the modified Ewers polarimetric method) exceeding that indicated in column (2); andAn ash content (after deduction of any added minerals) not exceeding that indicated in column (3). Otherwise, they fall in heading 2302. However, germ of cereals, whole, rolled, flaked or ground is always classified in heading 1104.(B) Products falling within this chapter under the above provisions shall be classified in heading 1101 or 1102 if the percentage passing through a woven metal wire cloth sieve with the aperture indicated in column (4) or (5) is not less, by weight, than that shown against the cereal concerned. Otherwise, they fall in heading 1103 or 1104.
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the offic