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HQ 951034


July 6, 1992

CLA-2 CO:R:C:F 951034 ALS

CATEGORY: CLASSIFICATION

TARIFF NO.: 3913.90.2050

Area Director of Customs
J.F.K. Airport
Building 178
Jamaica, New York 11430

RE: Internal Advice Request 74/91 Regarding the Classification of Xanthan Gum Produced by Microbial Fermentation

Dear Mr. Mattina:

This request for internal advice was initiated by the law firm of Barnes, Richardson and Colburn, on behalf of Gumix International, Inc., and concerns the classification of xanthan gum produced by microbial fermentation.

FACTS:

The product under consideration is xanthan gum obtained by microbial fermentation from the Xanthomonas campestris organism. At the end of the fermentation process, the xanthan gum is recovered by precipitation in isopropyl alcohol, then dried and milled.

ISSUE:

Is xanthan gum produced by microbial fermentation a natural gum under subheading 1301.90.9090, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), or a natural polymer in subheading 3913.90.2050, HTSUSA ?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's) taken in order. GRI 1 provides that the classification is determined first in accordance with the terms of the headings and any relative section and chapter notes. If GRI 1 fails to classify the goods and if the heading and legal notes do not otherwise require the remaining GRI's are applied taken in order.

The merchandise under consideration was entered under subheading 1301.90.9090, HTSUSA, the provision for natural gums, other, other, other. Your office issued a Customs Form 29, Notice of Action, proposing to classify the merchandise under subheading 3913.90.2050, HTSUSA, as a natural polymer, other, other. Counsel, disagreeing with your proposed action, has requested that the issue be considered by Headquarters pursuant to the provisions of section 177.11(b)(2), Customs Regulations (19 CFR 177.11(b)(2)).

In its submission, counsel notes that xanthan gum is "natural" because it is produced by the hereditary metabolism of the bacteria Xanthomonas campestris. The memory for producing the gum is in the bacteria's genes, but for commercial purposes, the organism is grown in a vat and the gum harvested. He notes that the process does not make the product a synthetic. He also states that xanthan is a "gum" within the commercial and common meaning of that term. He submitted portions of pertinent publications which refer to xanthan as a gum or natural gum. Counsel notes that xanthan (in its natural state) is a "secretion" which is exuded from the body of the bacteria to form a coating around the outer membrane- surface and protects the organism from drying out. He notes that such gum material is created out of the plant's body, secreted through its skin to the outside environment and that it is produced by a "vegetable."

In considering counsel's arguments in favor of classifying the subject merchandise under subheading 1301.90.9090, HTSUSA, we referred to the Explanatory Notes (EN's) to the Harmonized System which represent the view of the international classification experts. EN 13.01 provides for natural gums, resins, gum-resins, oleoresins and balsams. It states that these items may be crude, washed, purified, bleached, crushed or powdered, but excludes such items that have been subjected to more complicated processes such as treatment with water under pressure, treatment with mineral acids and treatment with heat. The explanatory note - 3 -
indicates that gums which have not been treated further than the processes of extraction and clean up of the unmodified gum and whose chemical structure has not been modified, may be included under this provision.

The question arises as to whether the fermentation process and the utilization of isopropyl alcohol to separate the gum from the fermentation batch once the fermentation step has reached completion results in a chemical change. In this regard we note that the when the alcohol is added to the finished fermentation batch all of the components remain soluble in the alcohol/water mixture except the xanthan gum, which separates from the mixture and drops to the bottom of the fermentation kettle. It is then siphoned off leaving the other fermentation components behind. This alcohol precipitation process is a separation and purification step and does not result in any chemical change in the gum. Accordingly, precipitation of the gum using isopropyl alcohol does not preclude classification of the product in subheading 1301.90.9090, HTSUSA.
EN
13.01, in addition to the provisions previously mentioned, specifies that the items covered by the related heading "...are vegetable secretions, which may solidify on contact with air." We note that the product under consideration is not a vegetable secretion. It is a polysaccharide, as stated in the publications included as exhibits with counsel's brief. We specifically note counsel's Exhibits 5, 6, 9, 15, 16 and 19 in this regard. We note, for example, Exhibit 9, an extract from the Federal Register of Part 121 of the Food and Drug Administration Regulations (FDA) (21 CFR Part 121) regarding food additives specifies in section 121.1224, FDA Regulations, in relation to Xanthan gum:

(a) The additive is a polysaccharide gum derived from Xanthomonas campestris by a pure-culture fermentation process and purified by recovery with isopropyl alcohol.

While the referenced exhibits, including the FDA Regulations, are presented for information purposes only and are not binding on the Customs Service, we note that they uniformly provide that the xanthan gum produced by microbial fermentation is a polysaccharide. It, therefore, would be classified under the provision for natural polymers, other, polysaccharides and their derivatives.

HOLDING:

Based on the foregoing analysis, we conclude that the imported article should be classified under subheading 3913.90.2050, HTSUSA, and subject to a compound general rate of duty of 2.2?/kg plus 7.7 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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