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HQ 966660




January 22, 2004

CLA-2 RR:CR:GC 966660AM

CATEGORY: CLASSIFICATION

TARIFF NO.: 3824.90.91

Mr. Gregory Conyers
Sumitrans Corporation
1601 Fifth Ave., Ste. #1720
Seattle, WA 98101

RE: Hydrogenated Maltose Syrup MU-75; Reconsideration of NY I86841

Dear Mr. Conyers:

This is in reference to your letter, dated February 3, 2003, on behalf of Ueno Fine Chemicals Industry, Inc., to the Director, National Commodity Specialist Division, concerning the classification, under the Harmonized Tariff Schedule of the United States, (HTSUS), of hydrogenated maltose syrup MU-75. You request reconsideration of New York Ruling (NY) I86841, dated October 11, 2002, classifying the instant merchandise in heading 3824, HTSUS, as a chemical preparation. You favor classification in heading 2940, HTSUS, as a sugar ether. Your letter was forwarded to this office for reply.

FACTS:

The instant merchandise is a mixture of sugar ethers, 75% maltitol, 21% maltotriiol and maltooligoitol, with 4% sorbitol, a sugar alcohol. Customs Laboratory Report NY 20030480, dated June 10, 2003, states, in pertinent part, the following:

The sample, labelled “maltitol solution l, MU-75,” is a viscous aqueous solution containing maltitol, a sugar ether, 75.5% dry basis. The sample [was] also found to contain maltotriiol, maltooligoitol, and sorbitol as stated in the chemical composition provided for the product.

The product is stated to be made from tapioca starch by enzymatical hydrolysis followed by hydrogenation. It contains byproducts, other than maltitol, from manufacturing process.

Literature indicates that maltose syrup, in general, contains 8-9% glucose, 40-80% maltose, and higher saccharides. When maltose syrup is hydrogenated, glucose is converted to sorbitol, maltose is converted to maltitol, and higher saccharides are converted to maltotriiol and maltooligoitol.

The sample does not contain sugar.

The merchandise is used in the production of various snack and non-essential food products, e.g. confectionery, chewing gum, candy, gummy candy, chocolate, ice cream, jam, cream, pancake syrup, sugar substitutes and sweeteners.

ISSUE:

Is a mixture of 96% sugar ethers and 4% sugar alcohol classified as a sugar ether?

LAW AND ANALYSIS:

Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.

GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs.

In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).

The HTSUS headings under consideration are as follows:

2940 Sugars, chemically pure, other than sucrose, lactose, maltose, glucose and fructose; sugar ethers, sugar acetals and sugar esters, and their salts, other than products of heading 2937, 2938 or 2939:

2940.00.60 Other

3824 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:

Other:

Other:

Other:

Other:

3824.90.91 Other:

EN 29.40 states, in pertinent part, that ". . . products, which fall in the heading whether or not they are chemically defined, include: . . . (6) Lactitol (INN) (4-O-ß-D-galactopyranosyl-D-glucitol). Used as a sweetening agent. . . . This heading, however, does not cover deliberate intermixtures of sugar ethers, sugar acetals, sugar esters or their salts, . . . ."

EN 38.24 states, in pertinent part, the following:

This heading covers:

(B) CHEMICAL PRODUCTS AND CHEMICAL OR OTHER PREPARATIONS

With only three exceptions (see paragraphs (7), (19) and (31) below), this heading does not apply to separate chemically defined elements or compounds.

The chemical products classified here are therefore products whose composition is not chemically defined, whether they are obtained as by-products of the manufacture of other substances (this applies, for example, to naphthenic acids) or prepared directly.

The chemical or other preparations are either mixtures (of which emulsions and dispersions are special forms) or occasionally solutions. Aqueous solutions of the chemical products of Chapter 28 or 29 remain classified within those Chapters, but solutions of these products in solvents other than water are, apart from a few exceptions, excluded therefrom and accordingly fall to be treated as preparations of this heading.

The preparations classified here may be either wholly or partly of chemical products (this is generally the case) or wholly of natural constituents (see, for example, paragraph (23) below).

However, the heading does not cover mixtures of chemicals with foodstuffs or other substances with nutritive value, of a kind used in the preparation of certain human foodstuffs either as ingredients or to improve some of their characteristics (e.g., improvers for pastry, biscuits, cakes and other bakers’ wares). These products generally fall in heading 21.06.

Subject to the above conditions, the preparations and chemical products falling here include:

(5) Sorbitol other than that of heading 29.05.

This category covers, in particular, sorbitol (D-glucitol) syrups containing other polyols and in which the D-glucitol content normally ranges from 60 % to 80 % of the dry matter. Products of this kind are obtained by the hydrogenation of glucose syrups having a high disaccharide and polysaccharide content, without any separation process having taken place. They have the characteristic of being difficult to crystallise and are used in a wide variety of industries (e.g., food, cosmetics, pharmaceuticals, plastics, textiles).

Sorbitol meeting the requirements of Note 1 to Chapter 29 is classified in heading 29.05. Sorbitol of this kind is usually obtained by the hydrogenation of glucose or invert sugar.

As to your claim that the instant merchandise is classified in heading 2940, HTSUS, as a sugar ether, we disagree. The instant merchandise is a mixture of sugar ethers, 75% maltitol, 21% maltotriiol and maltooligoitol, with 4% sorbitol, a sugar alcohol. It is not a single sugar ether or solely a mixture of sugar ethers. Neither is it derived from maltose, a chemically definable sugar. Rather, the instant merchandise is derived from the hydrogenation of a specifically tailored mixture of sugars, maltose and glucose, with higher saccharides. This process yields a product excluded by EN 29.40 because it is not simply a sugar ether but rather a "deliberate intermixture of sugar ethers" along with a sugar alcohol, a compound outside heading 2940, HTSUS.

The comparison to lactitol actually proves this point. Lactitol is created by the hydrogenation of lactose, a chemically definable sugar. The hydrogenation process used in that product, specifically included in the heading by EN 29.40, is 100% sugar ether. The instant merchandise, consisting of only 75% maltitol, and containing a sugar alcohol as well, is not analogous to lactitol.

Rather, the instant maltose syrup is analogous to the sorbitol syrup mentioned in EN 38.24, supra. Like that substance, it is a sweetener derived form the hydrogenation of a mixture of sugars yielding a chemical product. Therefore, it is classified in subheading 3824.90.91, HTSUS, the provision 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: Other: Other: Other: Other: Other."

HOLDING:

Hydrogenated Maltose Syrup MU-75 is classified in subheading 3824.90.91, HTSUS, the provision 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: Other: Other: Other: Other: Other."

EFFECT ON OTHER RULINGS:

NY I86841 is affirmed.

Sincerely,

Myles B. Harmon, Director

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