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HQ 963306




September 6, 2000

CLA-2 RR:CR:GC 963306K

CATEGORY: CLASSIFICATION

TARIFF NO.: 3504.00.50

Mr. Ned A. Larson
Senior Account Manager
Hoogwegt U.S., Inc.
724 Florsheim Drive
Libertyville, IL 60048-0459

RE: Solpro 300; Enzymatically Hydrolyzed Wheat Protein

Dear Mr. Larson:

In your letter dated April 16, 1999, to the Director, Customs National Commodity Specialist Division, New York, you requested a classification ruling under the Harmonized Tariff Schedule of the United States (HTSUS), for a product referred to as “Solpro 300”. Your letter was referred to Headquarters for a direct response. We regret the delay in not responding earlier on this very complicated matter.

FACTS:

The product is known as “Solpro 300” produced in Belgium. The submitted technical literature describes the product as “an enzymatically hydrolysed wheat protein isolate obtained from (wheat) gluten”. It is composed of 84% protein (using a factor of 6.25), less than 7% moisture, less than 1.5% ash and 6% total fat content. It is prepared from wet wheat gluten to which two enzymes, endoprotease and -amylase, have been added. The mixture is homogenized and heated to a temperature that will cause the enzymes to react with the gluten. The reaction proceeds under controlled conditions and is stopped once the desired product is obtained. The pH of the product is then adjusted with lactic acid. The product is pasteurized, concentrated by evaporation, dried, ground and packaged in 50 pound bags, 25 kilogram bags, one metric ton totes and/or pneumatic bulk tankers.

The literature further describes the product as more soluble which has greater emulsifying properties and is less elastic than the material from which it is derived, wheat gluten. It is used as an ingredient in wet and extruded pet food products. Customs laboratory report number 2-1999-22408 dated October 6, 1999, reported that the submitted sample did not pass a vitality test (elasticity and plasticity) for vital wheat gluten, and has evidence of hydrolysis.

ISSUE:

Whether “Solpro 300” 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 creamcoloured 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 “Solpro 300” is not specifically classified or included elsewhere in the tariff, and noting Customs laboratory report that the sample submitted has been partially enzymatically hydrolysed and has lost its vitality, it is classified by virtue of GRI 1, in subheading 3504.00.50, HTSUS.

HOLDING:

A product described as “Solpro 300”, an enzymatically hydrolysed vegetable protein made with the use of wheat gluten (which does not pass a vitality test for wheat gluten), is classified as other protein substances and their derivatives, not elsewhere specified or included, in subheading 3504.00.50, HTSUS.

Sincerely,


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