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HQ 960203




January 23, 1998

CLA-2 RR:CR:GC 960203K

CATEGORY: CLASSIFICATION

TARIFF NO.: 2106.90.9998; 2940.00.6000

Michael K. Tomenga, Esq.
McKenna & Cuneo
Attorneys at Law
1900 K Street, N.W.
Washington, D.C. 20006-1108

RE: Tariff Classification of Various Isomalt Products; Revocation of New York Ruling Letter (NYRL) 849851, Dated March 14, 1990

Dear Mr. Tomenga:

In response to a letter dated February 16, 1990, from Schenker's International Forwarders, Inc., a Customs broker, on behalf of your client, Irwin Services, D.B.A. Palatinit, the Customs Service issued NYRL 849851, dated March 14, 1990, which held that an isomalt product formulated as described in the ruling letter, was classified in subheading 3823.90.5050, Harmonized Tariff Schedule of the United States (HTSUS) (1990), which provided for other chemical mixtures not elsewhere provided for. This provision has been redesignated as subheading 3824.90.90, HTSUS, with a 1998 general rate of duty of 5 percent ad valorem, and subject to special provisions in subheadings 9901.00.50 and 52, HTSUS (not applicable to the merchandise in question).

This letter is to inform you that NYRL 849851 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(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. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of NYRL 849851 was published on October 8, 1997, in the Customs Bulletin, in Volume 31, No. 41. The following represents our current position with respect to the isomalt product described in NYRL 849851 and an isomalt product of a different formulation.

FACTS:

The specific isomalt product from West Germany described in NYRL 849851, dated March 14, 1990, contained a mixture of 50 percent of sorbitol and 50 percent mannitol (used as an artificial food sweetener) and was classified in the applicable 1990 subheading 3823.90.5050, HTSUS, which provided for chemical mixtures not elsewhere provided for (1998 subheading 3824.90.90, HTSUS), with a general rate of duty at 5 percent ad valorem. In its notice of October 8, 1997, Customs proposed to revoke NYRL 849851, and classify the product in subheading 2106.90.9998, HTSUS, as other food preparations not elsewhere specified or included, with a general rate of duty for 1998, at 7.6 percent ad valorem.

As the result of the proposed notice, you submitted timely comments on behalf of your client, dated November 6, 1997, and claimed that the products generically known as "isomalt" are precluded from classification in subheading 3824.90.90, HTSUS, as chemical mixtures, not especially provided and are also precluded from subheading 2106.90.9998, HTSUS, as other food preparations not elsewhere specified or included. You proposed that isomalt products be classified as an other sugar ether, subheading 2940.00.6000, HTSUS, with a 1997 general rate of duty at 5.8 percent ad valorem. As you are aware, the specifications including the manufacturing process in your proposed classification as a sugar ether, differed from the information which formed the basis for the decision in NYRL 849851. We agree with your classification position for the product as described in your submission of November 6, 1997. The specifications and the reasoning for the classification of this product is further discussed under the caption "Law and Analysis". However, we adhere to our position to classify the isomalt product as described in NYRL 849851, as other food preparations not elsewhere specified or included, in subheading 2106.90.9998, HTSUS.

ISSUE:

The first issue is whether an isomalt product containing 50 percent of sorbitol and 50 percent of mannitol (used as an artificial food sweetener), as a mixture of chemicals with foodstuffs or other substances with nutritive value, of a kind used in the preparation of human foodstuffs, is excluded from coverage in Chapter 38, HTSUS, by virtue of Legal Note 1(b) of Chapter 38, and, if it is, is the product classified as other food preparations not elsewhere specified or included, in subheading 2106.90.9998, HTSUS?

The second issue is whether other isomalt products may be classified in other provisions of the tariff depending on the specifications and manufacture?

LAW AND ANALYSIS:

Legal Note 1(b) Chapter 38, HTSUS, states that Chapter 38 does not cover "mixtures of chemicals with foodstuffs or other substances with nutritive value, of a kind used in the preparation of human foodstuffs (generally, heading 2106)."

The Explanatory Notes (ENs) 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. In 1993, the General ENs to Chapter 38 were amended to clarify the term "foodstuffs or other substances with nutritive value", of Legal Note 1(b) as follows:

For the purposes of Note 1 (b) to the Chapter, the expression " foodstuffs or other substances with nutritive value" principally includes edible products of Sections I to IV.

The expression "foodstuffs or other substances with nutritive value" also includes certain other products, for example, products of Chapter 28 used as mineral supplements in food preparations, sugar alcohols of heading 29.05, essential amino acids of heading 29.22, lecithin of heading 29.23, provitamins and vitamins of heading 29.36, sugars of heading 29.40, animal blood fractions of heading 30.02 for use in food preparations, casein and caseinates of heading 35.01, albumins of heading 35.02, edible gelatin of heading 35.03, edible protein substances of heading 35.04, dextrins and other edible modified starches of heading 35.05, sorbitol of heading 38.24, edible products of Chapter 39 (such as amylopectin and amylose of heading 39.13). It should be noted that this list of products is simply illustrative and should not be taken to be exhaustive.

The mere presence of "foodstuffs or other substances with nutritive value" in a mixture would not suffice to exclude the mixture from Chapter 38, by application of Note 1 (b). The mixtures which are excluded from Chapter 38 by virtue of Note 1 (b) are those which are of a kind used in the preparation of human foodstuffs.

In accordance with the explanation in the ENs, we conclude that the 50/50 mixtures of sorbitol classified in heading 3824 (or 2905), and mannitol (sugar alcohols) classified in heading 2905, used as an artificial sweetener, are "foodstuffs or other substances with nutritive value" that "are of the kind used in the preparation of human foodstuffs", and are excluded from coverage in Chapter 38. Accordingly, this specific isomalt product is classified in subheading 2106.90.9998, HTSUS, as other food preparations not elsewhere specified or included.

As previously noted, your submission of November 6, 1997, concerned another isomalt product. This product is composed of two isomeric (diastereomeric) glycosides 6-0-à-D-glucopyranosyl-D-sorbitol and 1-0-à-D-glucopyranosyl-D-mannitol constituting 98% isomalt on the anhydrous basis. The remaining 2% is composed of unconverted starting materials, impurities present in the starting material, and by-products due to the synthesis. You further claim that "these impurities do not affect the properties of the product with respect to its use".
Current literature recognizes that the above-named chemicals are non-natural, synthetic, stereoisomeric glycosides. (See Ullmann's Encyclopedia of Industrial Chemistry, Volume A5, Pages 79 thru 93 under the subject, "carbohydrates".) This means that they are not found in nature. Therefore they are excluded from heading 2938, HTSUS, as "glycosides, natural or reproduced by synthesis, and their salts, ethers, esters and other derivatives". This heading has been interpreted by Customs to apply only to a natural glycoside or one reproduced by synthesis in a manner so that its chemical structure is identical to the structure of a naturally occurring glycoside or derivative. (See Headquarters Ruling Letters 955128, dated December 16, 1994, 953124, dated November 8, 1994, 950133, dated August 3, 1993, 089540, dated October 19, 1992, concerning the interpretation by Customs of the term "natural or reproduced by synthesis".)

These glycosides are also known as disaccharide alcohols, meaning the glucose structure is attached to the alcohol via an ether linkage, and therefore can be considered sugar ethers. Subheading 2940.00.6000, HTSUS, provides for sugar ethers and sugar esters, and their salts, other than products of heading 2937, 2938, or 2939, and other than D-Arabinose. We agree that the isomalt product described in your letter of November 6, 1997, is classified in subheading 2940.00.6000, HTSUS, provided that the remaining 2% of impurities are derived from the manufacturing process and are not deliberately left in the product with a view of rendering it suitable for specific rather than for general use. We are of the opinion that the remaining 2% of the product are impurities and do not have any significant role in changing the natural properties of the sugar ether.

HOLDING:

The isomalt product containing 50 percent of sorbitol and 50 percent of mannitol, as described in NYRL 849851, dated March 14, 1990, used as an artificial food sweetener, is of a kind used in the preparation of human foodstuffs and is excluded from coverage in Chapter 38 by application of Note 1(b). The product is classified as other food preparations not elsewhere specified or included, in subheading 2106.90.9998, HTSUS, with a 1998 general rate of 7.6 percent ad valorem.

NYRL 849851, dated March 14, 1990, is revoked. In accordance with 19 U.S.C. 1625, this revocation 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

The isomalt product, as described in the comment submission of November 6, 1997, composed essentially of a 98 % purity of the two isomers, 6-0-à-D-glucopyranosyl-D-sorbitol and 1-0-à-D-glucopyranosyl-D-mannitol with 2% impurities, is classified in subheading 2940.00.6000, HTSUS, as sugar ethers and sugar esters, and their salts, other than products of headings 2937, 2938, or 2939, and other than D-Arabinose, with a 1997 and a 1998 general rate of duty of 5.8 percent ad valorem. There is no delayed effective date for a prospective ruling covering this isomalt product.

Sincerely,

John Durant, Director
Commercial Rulings Division

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