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HQ 965488




September 23, 2002

CLA-2 RR:CR:GC 965488AM

CATEGORY: CLASSIFICATION

TARIFF NO.: 2940.00.60, 2106.90.95, 2106.90.97, 2106.90.99

Ms. Gayle E. Meagher
Charles M. Schayer & Co.
P.O. Box 17769
Denver, CO 80217

RE: NutraFlora® FOS P-95, NutraFlora® FOS L-55, NutraFlora® FOS L-95

Dear Ms. Meagher:

This is in reference to your letter, dated January 3, 2002, on behalf of Mecor, Inc., to the Director, National Commodity Specialist Division, concerning the classification, under the Harmonized Tariff Schedule of the United States, (HTSUS), of NutraFlora® FOS P-95, NutraFlora® FOS L-55 and NutraFlora® FOS L-95. We regret the delay in responding.

In preparing our response, we have also reviewed New York Ruling (NY) 854467, dated August 1, 1990. Enclosed please find a copy of HQ 965518, dated September 23, 2002, revoking NY 854467 in accordance with section 625(c), Tariff Act of 1930 (19 U.S.C. 1625 (c)), 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). This ruling incorporates the reasoning presented in HQ 965518.

FACTS:

Fructooligosaccharides are saccharide polymers comprised of a single glucose molecule to which one, two, or three fructose units have been linked in an enzyme-catalyzed reaction.

NutraFlora® FOS P-95 contains, on a dry basis, more than 95 percent fructooligosaccharides (comprised of 50 percent GF3, 35 percent GF2, and 10 percent GF4), less than 5 percent glucose+fructose+sucrose, less than 5 percent moisture, and less than 0.1 percent ash. The pH is 5.0 – 7.0. It is a white powder whose granular size is a 40 mesh pass.

NutraFlora® FOS L-55 contains, on a dry basis, more than 55 percent fructooligosaccharides (comprised of 25 percent GF2, 25 percent GF3, and 5 percent GF4), less than 35 percent glucose+fructose and 10+2 sucrose, less than 25 percent moisture, and less than 0.1 percent ash. The pH is 6.0. It is a clear syrup.

NutraFlora® FOS L-95 contains, on a dry basis, more than more than 95 percent fructooligosaccharides (comprised of 45 percent GF3, 42 percent GF2, and 8 percent GF4), less than 5 percent glucose+fructose+sucrose, less than 25 percent moisture, and less than 0.1 percent ash. The pH is 6.0. It is a clear syrup.

ISSUE:

What is the classification of NutraFlora® FOS P-95, NutraFlora® FOS L-55 and NutraFlora® FOS L-95 under the HTSUS?

LAW AND ANALYSIS:

The "Law and Analysis" section of HQ 965518 is incorporated herein.

HOLDING:

Based on the foregoing, NutraFlora® FOS L-95 and NutraFlora® FOS P-95 are classifiable in subheading 2940.00.6000, HTSUS, the provision for "[S]ugars, 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: [S]ugar ethers, sugar acetals and sugar esters, and their salts, other than products of heading 2937, 2938, or 2939: [O]ther."

NutraFlora® FOS L-55, depending on sucrose content, is classifiable in subheadings 2106.90.9500, 2106.90.9700, or 2106.90.9997, HTSUS, the provisions for “[F]ood preparations not elsewhere specified or included: [O]ther, . . . ." or in subheading 2940.00.60, HTSUS, the provision for "[S]ugars, 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: [S]ugar ethers, sugar acetals and sugar esters, and their salts, other than products of heading 2937, 2938, or 2939: [O]ther."

Not enough information is supplied in the ruling request to determine classification of NutraFlora® FOS L-55 at the 10 digit level. If needed, a new ruling may be requested from the National Commodity Specialist Division, U.S. Customs Service, One Penn Plaza, 10th Floor, New York, N.Y. 10119.

Sincerely,

Myles B. Harmon, Acting Director

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