Tariff classification of two sugar and chemical mixtures

HQ 081405 January 10, 1990 CLA-2 CO:R:C:G 081405 LS CATEGORY: Classification TARIFF NO.: 1701.11 or 1701.12 Mr. Robert F. Lynch H.B. Fuller Company 801 Wagner Street Baltimore, Maryland 21224 RE: Tariff classification of two sugar and chemical mixtures Dear Mr. Lynch: Your inquiry, dated September 29, 1987, addressed to our New York office concerning the tariff classification of two sugar and chemical mixtures, one with magnesium sulfate and the other with magnesium sulfate and 135 gram bone glue, was referred to this office for a direct reply to you. FACTS: The breakdown of the components of the two sugar mixtures is as follows: Sample A, 90 percent raw sugar and 10 percent magnesium sulfate (epsom salt); and Sample B, 80 percent raw sugar, 10 percent magnesium sulfate (epsom salt), and 10 percent 135 gram bone glue. You state that the mixtures will be utilized along with other ingredients to compound and manufacture industrial adhesives, specifically book binding adhesives. Since you state that additional bone glue and magnesium sulfate could be added to the final product, the proportions of sugar to the other chemicals could change in the final product. You further state that the ingredients are not commercially separable and that you will not attempt to separate them. You have also informed us that the products will only be used in manufacturing inedible industrial adhesives and will not be used in foods or beverages. ISSUE: What are the applicable tariff classification provisions under the Harmonized Tariff Schedules of the United States Annotated (HTSUSA) for the subject products? -2- LAW AND ANALYSIS: General Rule of Interpretation (GRI) 1 of the HTSUSA provides that classification is determined first in accordance with the terms of the headings and any relative section or chapter notes. Since there are no headings or subheadings which provide for these mixtures used as intermediates in the manufacture of adhesives, we apply GRI 2(b). GRI 2(b) states that the classification of goods consisting of more than one material or substance shall be according to the principles of GRI 3. GRI 3(a) provides that when two or more headings each refer to part only of the substances contained in a mixture, these headings are to be regarded as equally specific in relation to the mixture, even if one of them gives a more complete or precise description of the mixture. GRI 3(b) provides: Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable. Explanatory Note (VIII) to Rule 3(b) provides that the essential character may be determined by "the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods." The sugar, which makes up 90 percent by weight of the first mixture, and 80 percent by weight of the second mixture, is the ingredient which gives these intermediate products their essential character. The essential character of these two products is determined by the ingredient with the greatest weight, which in both products is the sugar. Therefore, both products are classifiable in subheading 1701.11, if the sugar is derived from the juices of the sugar cane stalk, or subheading 1701.12, if the sugar is derived from the juices obtained by extraction from the root of the sugar beet. We are not able to determine the essential character based upon the role of the constituent materials in relation to the use of the products since we have not been provided with sufficient -3- information as to the properties of these intermediate products which are used to make industrial adhesives. You have only informed us that the products do not have adhesive properties. HOLDING: The two mixtures which are the subject of this ruling request are classifiable in subheading 1701.11, if the sugar is derived from the juices of the sugar cane stalk, or subheading 1701.12, if the sugar is derived from the juices obtained by extraction from the root of the sugar beet. Under both subheadings the mixtures are subject to quota. See Additional U.S. Note 3 to Chapter 17, HTSUSA. The mixtures are also subject to import fees imposed pursuant to section 22 of the Agricultural Adjustment Act, as amended (7 U.S.C. 624), provided that the raw sugar component will not be further refined or improved in quality. See subheading 9904.40.20, HTSUSA. These fees, which are imposed in addition to the rates of duty, are 2.2 cents per kilogram, but not to exceed 50 percent ad valorem. Sincerely, John Durant, Director Commercial Rulings Division HQ 081405 CLA-2 CO:R:C:G 081405 LS CATEGORY: Classification TARIFF NO.: 1701.11 or 1701.12 Mr. Robert Slomovitz Chief, Commercial Operations, Branch I New York Seaport 6 World Trade Center New York, New York 10048 RE: Tariff classification of two sugar and chemical mixtures Dear Mr. Slomovitz: This is in response to your internal inquiry which requested guidelines regarding the classification of sugar and chemical mixtures under the Tariff Schedules of the United States Annotated (TSUSA) and the Harmonized Tariff Schedules of the United States Annotated (HTSUSA). Pursuant to a policy set by this office and as discussed by Linda Schreiber in a telephone conversation with John Maria, Tom Brady, Gill Brownschweig, and Joseph DiMaria, we will only address the classification issue under the HTSUSA. Along with your internal inquiry you submitted a request for a classification ruling from H.B. Fuller Company. Enclosed is a copy of our ruling on the two mixtures which were the subject of that request. Applying General Rule of Interpretation (GRI) 1, we are unable to locate a provision which provides for either mixture. Since the mixtures do not have adhesive properties and are not, in themselves, glues, we cannot classify them in heading 3506. Further, these mixtures are not classifiable in heading 3823, which provides for "chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products)." In our opinion, that heading does not cover mixtures such as these where the percentage of the sugar component (either 90 percent or 80 percent) is so disproportionate to the percentage of the chemical component, even though sugar is a "natural product," as that term is used in heading 3823. We have been informed by the Technical Branch -2- of the Office of Laboratories and Scientific Services that neither mixture is considered a valid commercial mixture. This finding would further preclude classification in heading 3823. GRI 2(b) leads us to application of GRI 3(a). Since there are two or more headings which refer to part only of the materials contained in these mixtures, we refer to GRI 3(b). GRI 3(b) provides that the mixture should be classified as if it consisted of the component which gives it its essential character. With regard to the mixture of 90 percent raw sugar and 10 percent magnesium sulfate, the sugar imparts the essential character based upon its percentage by weight. We reach the same conclusion with respect to the mixture of 80 percent raw sugar, 10 percent magnesium sulfate, and 10 percent bone glue. Although the bone glue may give this product an adhesive base, we cannot draw the conclusion that the bone glue imparts the essential character to the product based upon its role in relation to the use of the product. The importer has not presented sufficient evidence as to the properties of this intermediate product, including its essential character. We are only told that, although the product is used to compound and manufacture adhesives, the product itself does not have adhesive properties. In fact, we have been told by the Technical Branch of the Office of Laboratories and Scientific Services that sugar is useful as an abherent (a substance that prevents or reduces adhesion of a material to itself or to another material). We also have not been provided with any information as to the type of intermediate product, and its component parts by percentage, which is recognizable in the industry for use in manufacturing book binding adhesives. Raw sugar is classifiable in subheading 1701.11, HTSUSA, if it is derived from the juices of the sugar cane stalk, or in subheading 1701.12, HTSUSA, if it is derived from the juices obtained by extraction from the root of the sugar beet. Therefore, these two mixtures are classifiable in either of these provisions. The Explanatory Note to heading 17.01 states that raw sugar, which is covered by that heading, may be of such a high degree of purity that it is suitable for human consumption without refining. This Note suggests that raw sugar need not be edible in order to be classifiable in heading 17.01. The sugar in the mixture containing bone glue would not be edible since it is not commercially feasible at the present -3- time to separate bone glue from the mixture. According to this Explanatory Note, the mixture containing bone glue is still classifiable in heading 17.01. Both mixtures, whether classified in subheading 1701.11 or subheading 1701.12, HTSUSA, are subject to quota. See Additional U.S. Note 3 to Chapter 17, HTSUSA. The mixtures are also subject to import fees imposed pursuant to section 22 of the Agricultural Adjustment Act, as amended (7 U.S.C. 624), provided that the raw sugar component will not be further refined or improved in quality. See subheading 9904.40.20, HTSUSA. These fees, which are imposed in addition to the rates of duty, are 2.2 cents per kilogram, but not to exceed 50 percent ad valorem. Your internal inquiry requested guidelines as to the classification, in general, of mixtures of sugar and chemicals which are not used in foods. We are unable to establish general guidelines for the classification of such products because the classification will vary depending on the components of the product, the percentage of each component and the role of each component in relation to the use of the product. If there is no specific provision for the product in accordance with GRI 1, then you should apply the other General Rules of Interpretation. Most of these mixtures should be classifiable either pursuant to GRI 1 or GRI 3. Sincerely, John Durant, Director Commercial Rulings Division schreiber library 081405LS 6cc: Area Dir New York Seaport LSchreiber:za:01/05/90