CLA-2 RR:CR:GC 964217K
Mr. Bastiaan van den Berg
International Trade Advisor
Netherlands Chamber of Commerce in the U.S., Inc.
4200 Linnean Avenue, NW
Washington, DC 20008
RE: Revocation of New York Ruling Letter (NYRL) B87801; Wheat Gluten; Novolat 80
Dear Mr. van den Berg:
In response to your letters on behalf of Hyproca Veghel dated April 17 and June 30, 1997, Customs issued on August 13, 1997, NYRL B87801, concerning the classification of a product described as “Novolat 80” from the Netherlands, which was classified as wheat gluten, whether or not dried, to be used as animal feed, in subheading 1109.00.1000, Harmonized Tariff Schedule of the United States (HTSUS).
This letter is to inform you that in the course of reviewing the classification of a similar product, we have determined that NYRL B87801 no longer reflects the views of the Customs Service and is revoked in accordance with section 177.9(d) of the Customs Regulations (19 CFR 177.9(d)). Pursuant to section 625, Tariff Act of 1930 (19 U.S.C. 1625), 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, 2186 (1993), hereinafter, section 625), notice of the proposed revocation of NYRL B87801 was published on July 26, 2000, in the Customs Bulletin, in Volume 34, No. 30. The following represents our position.
FACTS:
“Novolat 80” is described as an enzymatically hydrolysed wheat gluten in powder form containing 80% protein, 10.5% carbohydrates, 1.0% ash, and amino acids and minerals. The flow chart for “Novolat 80” indicates that wheat gluten
is mixed with water and during the first reaction, protease enzymes and citric acid are added followed by a heating process. During the second reaction, a viscosity reducing enzyme is added and at the end of the reaction, citric acid is added. The product is then spray dried. The product is stated to be used in the production of animal feed.
ISSUE:
Whether “Novolat 80” is classified in heading 1109, HTSUS, as wheat gluten or in heading 3504 as other protein substances and derivatives, not elsewhere specified or included.
LAW AND ANALYSIS:
The classification of imported merchandise under the HTSUS is governed by the principles set forth in the General Rules of Interpretation (GRI). GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section and chapter notes and, unless otherwise required, according to the remaining GRI’s, taken in their appropriate order. Accordingly, we first have to determine whether the articles are classified under GRI 1.
Heading 1109, HTSUS, provides for wheat gluten, whether or not dried. The Explanatory Notes (EN's) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and General Rules of Interpretation of the HTSUS. The EN’s to heading 1109, state that
Gluten is extracted from wheat flour by simple aqueous separation from the other constituents (starch, etc.). It comes in the form of a whitish viscous liquid or paste (“_moist_” gluten) or a cream coloured powder (dry gluten).
It consists essentially of a mixture of various proteins, the main ones being gliadin and glutenin (which account for 85 to 95 % of the total). The presence of these two proteins is characteristic of wheat gluten, which owes to them its elasticity and plasticity when mixed with water in suitable proportions.
Gluten is used mainly to enrich in proteins flours used in making certain types of bread or biscuits, of macaroni or similar products or of dietetic preparations. It is also used as a binder in certain meat preparations, for the manufacture of certain glues or of products such as gluten sulphate or gluten phosphate, hydrolysed vegetable proteins or sodium glutamate.
The heading excludes, inter alia ;
(a) Wheat flour enriched by the addition of gluten (heading 11.01).
(b) Proteins extracted from wheat gluten (generally heading 35.04).
(c) Wheat gluten prepared for use as a glue or as a glazing or dressing for the
textile industry (heading 35.06 or 38.09).
The EN’s, in essence, describe wheat gluten as extracted from wheat and due to its elasticity and plasticity, is used in making bread and similar products. It is also used as a binder in certain meat preparations and in the manufacture of other products such as “hydrolysed vegetable proteins”. The EN’s indicate that products made with the use of wheat gluten are excluded from the heading. “Hydrolysed vegetable proteins”, made with the use of wheat gluten are not covered by heading 1109, and therefore not classified in heading 1109, HTSUS, by virtue of GRI 1.
Heading 3504, HTSUS, provides for peptones and their derivatives; other protein
substances and their derivatives, not elsewhere specified or included; hide powder, whether or not chromed. Subheading 3504.00.10, HTSUS, provides for protein isolates and 3504.00.50, HTSUS, provides, in part, for other protein substances and their derivatives, not elsewhere specified or included. Since “Novolat 80” is not specifically classified or included elsewhere in the tariff, and assuming that the product can not pass a vitality test (elasticity and plasticity) for vital wheat gluten, it is classified by virtue of GRI 1, in subheading 3504.00.50, HTSUS.
HOLDING:
“Novolat 80”, as described above, is classified in subheading 3504.00.50, HTSUS, as other protein substances and their derivatives, not elsewhere specified or included.
NYRL B87801 dated August 13, 1997, is revoked.
In accordance with 19 U.S.C. 1625, this ruling will become effective 60 days after its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to 19 U.S.C. 1625 does not constitute a change of practice or position in accordance with section 177.10(c)(1), of the Customs Regulations (19 CFR 177.10(c)(1)).
Sincerely,
John Durant, Director
Commercial Rulings Division