Application for Further Review of Protest No. 3901-12-100591 Ribomix

HQ H233549 December 2, 2014 CLA-2 RR:CTF:TCM H233549 MG CATEGORY: CLASSIFICATION TARIFF NO.: 2106.90.99 Port Director, Chicago Service Port U.S. Customs and Border Protection 5600 Pearl Street Rosemont, IL 60018 Attn: Mary Lou Belfiore, Supervisor Entry Specialist Re: Application for Further Review of Protest No. 3901-12-100591: Ribomix Dear Port Director: This is in response to Protest 3901-12-100591, dated May 16, 2012, filed by CDS Global Logistics, on behalf of Paul Schueller International, Inc. (Protestant), in response to your classification of the Ribomix product under the Harmonized Tariff Schedule of the United States (HTSUS). Technical information on the product such as a flow sheet and technical data were submitted and examined by the CBP Laboratory. According to the submission, the Ribomix product is a spray dried ingredient, which must be added to other ingredients in powder or liquid phase to produce a semi-finished product. Once mixed, the blended product may be used in food process manufacturing. The importer claims the Ribomix product is a hydrolyzed nucleic acid. It is a yeast derivative, which does not constitute an edible preparation in its imported state. Protestant imported four entries of the subject product entered between June 13, 2011 and February 3, 2012, under 2934.99.90, HTSUS, which provides for: “Nucleic acids and their salts, whether or not chemically defined; other heterocyclic compounds: Other: Other: Other: Other: Other.” The entries were liquidated on May 23, 2012, under subheading 2106.90.99, HTSUS, which provides for: “Food preparations not elsewhere specified or included: Other: Other: Other: Other: Other: Other,” at a duty rate of 6.4%, ad valorem. This Protest and AFR were filed on May 16, 2012. ISSUE: What is the proper classification of the Ribomix under the HTSUS? LAW AND ANALYSIS: Initially, we note that the matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification and the rate and amount of duties chargeable. The protest was timely filed on May 16, 2012, within 180 days of liquidation, pursuant to 19 U.S.C. §1514(c)(3). Further Review of Protest 1703-10-10026 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee. Specifically, Protestant alleges that the Port’s decision is inconsistent with rulings HQ 963040, dated October 14, 1999 and NY R03289, dated March 13, 2006. The product’s specification for label data lists 4% loss on drying (moisture) and 41% 5' Nucleotides, with 55% of the material unaccounted for. The manufacturer states that no carriers or salt are added. Laboratory examination of the product (CBP Laboratory Information Network # NY20121598, dated September 10, 2012) shows that the product’s general compositional description consists of 64% nucleotides, 5% moisture, 7.9% proteins, 0.85% fat, and no dietary fiber leaving approximately 22% missing (may be carbohydrate). The results conclude that Ribomix is a yeast extract obtained by the process of hydrolysis that cannot provoke fermentation, with an enriched content of 5'-Nucleotides, and is used mainly in the food industry. Classification under the HTSUS is made 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. 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. 8980, 54 Fed. Reg. 35127 (August 23, 1989). The 2012 HTSUS provisions under consideration are as follows: 2106 Food preparations not elsewhere specified or included: 2106.90 Other: Other: Other: Other: Other: 2106.90.99 Other: * * * 2934: Nucleic acids and their salts, whether or not chemically defined; other heterocyclic compounds: Other: 2934.99 Other: Other: Other: 2934.99.90 Other * * * The ENs to heading 21.06, HTSUS, provide that this heading covers: (11) Autolysed yeast and other yeast extracts, products obtained by the hydrolysis of yeast. These products cannot provoke fermentation and they have a high protein value. They are used mainly in the food industry (e.g., for the preparation of certain seasonings). * * * Note 1 to Chapter 29 provides as follows: Except where the context otherwise requires, the headings of this chapter apply only to: Separate chemically defined organic compounds, whether or not containing impurities: Protestant asserts that Ribomix is a product that may not be consumed as an edible preparation. Protestant further states that the product is a flavor enhancer, which must be incorporated into a product which will, eventually, become edible as it is an ingredient in food preparation. Protestant further posits that Ribomix is not a hydrolyzed yeast but a hydrolyzed nucleic acid of heading 2934, HTSUS and that Ribomix is a high protein value yeast extract based product which is used in the food industry. Specifically, protestant argues that the content of free 5’ Nucleotides of Ribomix is very high, namely a minimum of 40 % anhydrous, compared to any standard yeast extract, maximum 12 % anhydrous. The technical data, material safety data and product specifications sheets submitted by the manufacturer, Prosol SpA, Ribomix is a natural flavor enhacer-yeast extract, source of natural 5’-nucleotides, rich in IMP and GMP and is obtained by an enzymatic process from yeast. In a Letter dated February 13, 2012, the manufacturer of Ribomix stated that Ribomix was indirectly obtained from yeast by different processing steps. The first step is to obtain Ribonucleic acid from yeast by a natural physical process. The second step is to process the ribonucleic acid to obtain a product with a high content of natural IMP-Na and GMP-Na nucleotides which are natural food flavor enhancers. The letter further states that the Ribomix is a spray dried product, which must be added to other ingredients in powder or in liquid phase to produce a semi-finished product. This blend is then used in food process manufacturing. Protestant cites HQ 963040 for the proposition that Ribomix is classified in heading 2934, HTSUS. This ruling concerns the classification of the product Thymidine which consists of thymine linked to D-deoxyribose. Thymide is not similar to Ribomix in the way it is manufactured, its components or the way it is used. Protestant also cites NY R03289, which concerns the classification of NADH, Disodium salt and the lithium salt of NAD imported for research purposes. This product is different from the Ribomix in composition and use. According to the CBP laboratory findings, there is no indication that the Ribomix is comprised of separate chemical compounds of Chapter 29, HTSUS. In fact, Ribomix is beyond the parameters of Ch. 29 inasmuch as the product is a yeast extract obtained by the process of hydrolysis, that is composed of 64% nucleotides, 5% moisture, 7.9% proteins, .85 % fat, and 22% unaccounted components. In HQ 962800, dated May 18, 1999, we classified a product called Aromild, which is a flavoring agent rich in nucleic acids and amino acids which is added to other foodstuffs to improve taste and texture. The product, in the form of a light brown powder, is a mixture of approximately 20 percent maltodextrin and 80 percent enzymatically treated yeast extracts. Also, in HQ 952787, dated June 10, 1993, we classified a non-alcoholic preparation of yeast extract similar to the Ribomix. In these two rulings, the merchandise was classified in heading 2106, HTSUS. Accordingly, we conclude that, as such, the product is properly classified in subheading 2106.90.99, HTSUS, which provides for other food preparations not elsewhere specified or included. HOLDING: By application of GRI 1 the Ribomix is classified under subheading 2106.90.99, HTSUS, which provides for: “Food preparations not elsewhere specified or included: Other: Other: Other: Other: Other: Other,” at a duty rate of 6.4%, ad valorem. You are instructed to deny the protest in full. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision, Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution. Sincerely, Myles Harmon, Director Commercial and Trade Facilitation Division