United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 2005 HQ Rulings > HQ 563295 - HQ 966997 > HQ 966632

Previous Ruling Next Ruling
HQ 966632




December 14, 2004

CLA-2 RR:CR:TE 966632 ASM

CATEGORY: CLASSIFICATION

TARIFF NO.: 3505.10.0040

Mr. Paul Giguere
Sandler, Travis & Rosenberg, P.A.
1300 Pennsylvania Ave., NW
Washington, D.C. 20004-3002

RE: Revocation of NY G81194; The tariff classification of Cato® Size 52A and Cato® 15A; Modified starches

Dear Mr. Giguere:

This is in regard to Customs and Border Protection (CBP) New York Ruling Letter (NY) G81194, issued to you on November 3, 2000, on behalf of your client, Smurfit Carton De Colombia, S.A. We have reviewed this ruling and determined that the classification provided for this merchandise is incorrect. This ruling revokes NY G81194 by providing the correct classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) for two products identified as Cato® Size 52A and Cato® 15A.

Pursuant to section 625(c), Tariff Act of 1930, 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, 2188 (1993) notice of the proposed revocation of NY G81194 was published on November 3, 2004, in Vol. 38, No. 45, of the Customs Bulletin. No comments were received in response to this notice.

FACTS:

Cato® Size 52A and Cato® 15A are chemically modified starches. Cato® Size 52A contains an added hydrocarbon defoamer and is used as a surface sizing agent in the papermaking industry. Cato® 15A contains an added phosphorous compound and silicon and is of a kind used in acid paper-making processes. However, the added defoamer, phosphorous, and/or silicon compounds make-up less than 1 percent of each product.

In NY G81194, CBP classified Cato® Size 52A and Cato® 15A in subheading 3809.92.5000, HTSUSA, which provides for “Finishing agents, dye carriers to accelerate the dyeing or fixing of dyestuffs and other products and preparations (for example, dressings and mordants), of a kind used in the textile, paper, leather or like industries, not elsewhere specified or included: Other: Of a kind used in the paper or like industries: Other”.

ISSUE:

What is the proper classification for the merchandise?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRI may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Both products, identified as Cato® Size 52A and Cato® 15A, are cationic corn starches, i.e., a starch which has been chemically modified so that the cationic charge ensures close binding with anion cellulose fibers. Cationic starches are made via etherification (or esterification) of their hydroxyl groups with quarternary ammonium groups combined with phosphating of starches. Although many of the cationic starches are used primarily in paper manufacturing, they can also be used as textile sizing, emulsification, stabilization (for colloid solutions, etc.) by their functional properties. In addition, they can be used as a finished sizing or in combination with other ingredients for the sizing.

Heading 3505, HTSUSA, provides for:

Dextrins and other modified starches (for example, pregelatinized or esterified starches); glues based on starches, or on dextrins or other modified starches.

The EN for heading 3505, states that the heading covers, “. . . modified starches, i.e., products obtained by the transformation of starches through the action of heat, chemicals (e.g., acids, alkalis) or diastase, and starch modified, e.g., by oxidation, esterification or etherification. “ In addition, EN 35.05(4) specifically notes that the heading covers esterified starches which include starch acetates used principally in the paper industries. However, EN 35.05(d) states that the heading does not cover “Prepared glazings and dressings (based on starches or dextrins) of a kind used in the paper, textile, leather or like industries (heading 38.09).”

Heading 3809, HTSUSA, provides for:

Finishing agents, dye carriers to accelerate the dyeing or fixing of dyestuffs and other products and preparations (for example, dressings and mordants), of a kind used in the textile, paper, leather or like industries, not elsewhere specified or included.

EN 38.09(B) describes products and preparations used in the paper industries as follows: “(2) Sizing agents or sizing additives used in paper processing to improve printability, smoothness and gloss and to impart writing properties to the paper. These preparations may be based on . . . starch . . .”. Exclusionary language set forth at EN 38.09(e) specifically notes that the heading does not cover “Dextrins and other modified starches, and glues based on starches or on dextrins or other modified starches (heading 35.05).

With respect to both Cato® Size 52A and Cato® 15A, the starch constituent predominates in both products because the defoamer or phosphorous/silicon compounds are added in very small amounts relative to the starch. As we have previously noted, these added compounds make-up less than 1 percent of each product. Furthermore, based on a review of laboratory findings for Cato® Size 52A and Cato® 15A, these products are cationic starches which have been chemically modified by etherification or esterification. Thus, we are now of the opinion that these products have been manufactured to function as “modified starches”. As such, Heading 3505, HTSUSA, specifically provides for modified starches. In addition, EN 35.05(4) notes that the heading covers esterified starches that are principally used in the paper industries. It is also important to note that heading 3809, HTSUSA, is a basket provision that generally provides for finishing agents, dye carriers and other products and preparations of a kind used in the paper industry which may be based on starch (among other things), and are “not elsewhere specified or included” (emphasis supplied). Since the Cato® Size 52A and Cato® 15A papermaking products are specifically described in heading 3505, HTSUSA, there is no occasion to consider classification in heading 3809, HTSUSA.

We note, the World Customs Organization (WCO), Harmonized System Committee (HSC), at its 31st Session, decided to classify Cato® Size 52A and Cato® 15A in heading 35.05, HTS, which provides for, among other things, “Dextrins and other modified starches”. In making this decision, the HSC noted findings made by the WCO, Scientific Sub-Committee (SSC) that certain added ingredients to these products, i.e., defoamer, phosphorus, and silicon, did not change the character of the goods as modified starches, but were merely included as processing aids. See Opinion No. 3505.10/1 and 2, of the WCO Compendium of Classification Opinions.

As stated in T.D. 89-80, decisions in the Compendium of Classification Opinions should be treated in the same manner as the EN, i.e., while neither legally binding nor dispositive, they constitute the official interpretation of the Harmonized System in consideration of a particular issue placed before the HSC. TD 89-80 further states that EN’s and decisions in the Compendium of Classification Opinions “should receive considerable weight.”

In view of the foregoing, we are now of the opinion that the subject products, Cato® Size 52A and Cato® 15A, are properly classified in heading 3505, HTSUSA, which provides for “ other modified starches”.

HOLDING:

NY G81194, dated November 3, 2000, is hereby revoked.

The subject merchandise is correctly classified in subheading 3505.10.0040, HTSUSA, which provides for, “Dextrins and other modified starches (for example, pregelatinized or esterified starches); glues based on starches, or on dextrins or other modified starches: Dextrins and other modified starches, Other: Derived from corn (maize) starch.” The general column one duty rate is 0.7 cents/kg.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification), your client should contact the local CBP office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

In accordance with 19 U.S.C. section 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,


Previous Ruling Next Ruling

See also: