The tariff classification of food ingredients from the Netherlands

N055239 August 28, 2009 CLA-2-21:OT:RR:NC:N2:228 CATEGORY: Classification TARIFF NO.: 2106.90.9998 Mr. Kenton C. Grimes Phoenix International Cleveland 17515 Engle Lake Dr Middleburg Heights, OH 44130 RE: The tariff classification of food ingredients from the Netherlands Dear Mr. Grimes: In your letter dated March 12, 2009, on behalf of Norben Company Inc., you requested a tariff classification ruling. Samples of three products and ingredients breakdowns were submitted with your letter. Two of the products were sent to the US Customs and Border Protection laboratory for analysis. The third was examined and disposed of. Vivinal GOS is a syrup used as the base product of two dry products, Vivinal GOS 10 and Vivinal GOS 15. All are used as ingredients in the production of various food products. Vivinal GOS, obtained by the biosynthesis of lactose, is said to contain 59 percent galacto-oligosaccharides, 21 percent lactose, 19 percent glucose, and 1 percent galactose. Vivinal GOS 10 is described as a whey product derived from the enzymatic action of lactose, containing 36 percent lactose, 28.5 percent galacto-oligosaccharides, 17.5 percent protein, 9.5 percent glucose, 3.5 percent minerals, 3 percent moisture, 1.5 percent fat, and .05 percent galactose. Vivinal GOS 15, a fine white powder, is said to contain 48.5 percent maltodextrin, 28.5 percent galacto-oligosaccharides, 10.1 percent lactose, 9.7 percent other mono- and disaccharides, 3 percent moisture, 0.1 percent protein, and 0.1 percent ash. The laboratory found the Vivinal GOS to be a clear, viscous liquid, containing 20.9 percent glucose and 19.6 percent lactose on a dry basis, with a moisture content of 24.9 percent. The laboratory reported Vivinal GOS 10 as an off-white powder containing 34.3 percent lactose, 17.6 percent whey protein, 11.4 percent glucose, 2.8 percent ash, and 2.9 percent moisture. In your letter you suggest the Vivinal GOS should be classified in subheading 1702.19.0000, Harmonized Tariff Schedule of the United States (HTSUS), as lactose and lactose syrups. We do not agree. Based on the ingredient composition and method of production, it is more specifically provided for elsewhere. The applicable subheading for Vivinal GOS and Vivinal GOS 15 will be 2106.90.9998, Harmonized Tariff Schedule of the United States (HTSUS), which provides for food preparations not elsewhere specified or included…other…other…other. The rate of duty will be 6.4 percent ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/. This merchandise is subject to The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (The Bioterrorism Act), which is regulated by the Food and Drug Administration (FDA). Information on the Bioterrorism Act can be obtained by calling FDA at 301-575-0156, or at the Web site www.fda.gov/oc/bioterrorism/bioact.html. Your inquiry does not provide enough information for us to issue a classification ruling on the Vivinal GOS 10 product. Your request for a classification ruling should include the additional information indicated below: 1. Is the whey protein concentrate ingredient in fluid or dry form? 2. What is the protein content of the whey protein concentrate ingredient? When this information is available, you may wish to consider resubmission of your request. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177). A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Stanley Hopard at 646-733-3029. Sincerely, Robert B. Swierupski Director National Commodity Specialist Division