HQ 964272
September 6,2000
CLA-2 RR:CR:GC 964272K
Mr. Robert Gardenier
M.E. Dey & Co.
5007 South Howell Avenue
P.O. Box 37165
Milwaukee, WI 53237-0165
RE: Revocation of New York Ruling Letter (NYRL) B88094; Propyl 80
Dear Mr. Gardenier:
In response to your letter dated July 30, 1997, on behalf of Strauss Feed LLC, Customs issued on November 24, 1997, NYRL B88094, concerning the classification of a product described as “Propyl 80” from Holland, which was classified in 3824.90.9050, Harmonized Tariff Schedule of the United States (HTSUS), as prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included; residual products of the chemical or allied industries, not elsewhere specified or included: other.
This letter is to inform you that in the course of reviewing the classification of a similar product, we have determined that NYRL B88094 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 B88094 was published on July 26, 2000, in the Customs Bulletin, in Volume 34, No. 30. The following represents our position.
FACTS:
In your submission of July 30, 1997, “Propyl 80” is described as an enzymatic hydrolyzed wheat protein composed of 10.5% carbohydrates, 3%fats,
1% ash, and a protein value of 81% that is used as an ingredient in animal milk replacers and veal feeds. Information was not available as to whether the product passes a vitality test (elasticity and plasticity) for vital wheat gluten.
ISSUE:
Whether “Propyl 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 rather then in heading 3824 as other residual products of the chemical or allied industries, 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. GRI 3.(a), also provides, in part, that when goods are prima facie classifiable under two or more headings, the heading which provides the most specific description shall be preferred to headings providing a more general description. 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 3824.90.9050, Harmonized Tariff Schedule of the United States (HTSUS), provides for prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included; residual products of the chemical or allied industries, not elsewhere specified or included: other.
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 “Propyl 80” as described (assuming that it does not pass a vitality test for vital wheat gluten) is not specified or included in heading 1109 or any other heading, it may be classified by virtue of GRI 1 in heading 3824 or 3504, both of which, covers certain products not specified or included elsewhere in the tariff.
As between headings 3504 and 3824, “Propyl 80”, a protein substance made with the use of wheat gluten is more specifically described in heading 3504, covering other protein substances and their derivatives.
HOLDING:
“Propyl 80” (assuming that it does not pass a vitality test for vital wheat gluten) is classified in subheading 3504.00.50, HTSUS as other protein substances and their derivatives, not elsewhere specified or included.
NYRL B88094 dated November 24, 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