CLA-2 CO:R:C:F 951034 ALS
Area Director of Customs
Jamaica, New York 11430
RE: Internal Advice Request 74/91 Regarding the Classification of
Xanthan Gum Produced by Microbial Fermentation
Dear Mr. Mattina:
This request for internal advice was initiated by the law firm
of Barnes, Richardson and Colburn, on behalf of Gumix
International, Inc., and concerns the classification of xanthan
gum produced by microbial fermentation.
The product under consideration is xanthan gum obtained by
microbial fermentation from the Xanthomonas campestris organism.
At the end of the fermentation process, the xanthan gum is
recovered by precipitation in isopropyl alcohol, then dried and
Is xanthan gum produced by microbial fermentation a natural
gum under subheading 1301.90.9090, Harmonized Tariff Schedule of
the United States Annotated (HTSUSA), or a natural polymer in
subheading 3913.90.2050, HTSUSA ?
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LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is governed by
the General Rules of Interpretation (GRI's) taken in order. GRI
1 provides that the classification is determined first in
accordance with the terms of the headings and any relative section
and chapter notes. If GRI 1 fails to classify the goods and if the
heading and legal notes do not otherwise require the remaining
GRI's are applied taken in order.
The merchandise under consideration was entered under
subheading 1301.90.9090, HTSUSA, the provision for natural gums,
other, other, other. Your office issued a Customs Form 29, Notice
of Action, proposing to classify the merchandise under subheading
3913.90.2050, HTSUSA, as a natural polymer, other, other. Counsel,
disagreeing with your proposed action, has requested that the issue
be considered by Headquarters pursuant to the provisions of section
177.11(b)(2), Customs Regulations (19 CFR 177.11(b)(2)).
In its submission, counsel notes that xanthan gum is "natural"
because it is produced by the hereditary metabolism of the bacteria
Xanthomonas campestris. The memory for producing the gum is in the
bacteria's genes, but for commercial purposes, the organism is
grown in a vat and the gum harvested. He notes that the process
does not make the product a synthetic. He also states that xanthan
is a "gum" within the commercial and common meaning of that term.
He submitted portions of pertinent publications which refer to
xanthan as a gum or natural gum. Counsel notes that xanthan (in
its natural state) is a "secretion" which is exuded from the body
of the bacteria to form a coating around the outer membrane-
surface and protects the organism from drying out. He notes that
such gum material is created out of the plant's body, secreted
through its skin to the outside environment and that it is produced
by a "vegetable."
In considering counsel's arguments in favor of classifying
the subject merchandise under subheading 1301.90.9090, HTSUSA, we
referred to the Explanatory Notes (EN's) to the Harmonized System
which represent the view of the international classification
experts. EN 13.01 provides for natural gums, resins, gum-resins,
oleoresins and balsams. It states that these items may be crude,
washed, purified, bleached, crushed or powdered, but excludes such
items that have been subjected to more complicated processes such
as treatment with water under pressure, treatment with mineral
acids and treatment with heat. The explanatory note - 3 -
indicates that gums which have not been treated further than the
processes of extraction and clean up of the unmodified gum and
whose chemical structure has not been modified, may be included
under this provision.
The question arises as to whether the fermentation process
and the utilization of isopropyl alcohol to separate the gum from
the fermentation batch once the fermentation step has reached
completion results in a chemical change. In this regard we note
that the when the alcohol is added to the finished fermentation
batch all of the components remain soluble in the alcohol/water
mixture except the xanthan gum, which separates from the mixture
and drops to the bottom of the fermentation kettle. It is then
siphoned off leaving the other fermentation components behind.
This alcohol precipitation process is a separation and purification
step and does not result in any chemical change in the gum.
Accordingly, precipitation of the gum using isopropyl alcohol does
not preclude classification of the product in subheading
13.01, in addition to the provisions previously mentioned,
specifies that the items covered by the related heading "...are
vegetable secretions, which may solidify on contact with air." We
note that the product under consideration is not a vegetable
secretion. It is a polysaccharide, as stated in the publications
included as exhibits with counsel's brief. We specifically note
counsel's Exhibits 5, 6, 9, 15, 16 and 19 in this regard. We note,
for example, Exhibit 9, an extract from the Federal Register of
Part 121 of the Food and Drug Administration Regulations (FDA) (21
CFR Part 121) regarding food additives specifies in section
121.1224, FDA Regulations, in relation to Xanthan gum:
(a) The additive is a polysaccharide gum derived from
Xanthomonas campestris by a pure-culture fermentation
process and purified by recovery with isopropyl
While the referenced exhibits, including the FDA Regulations,
are presented for information purposes only and are not binding on
the Customs Service, we note that they uniformly provide that the
xanthan gum produced by microbial fermentation is a polysaccharide.
It, therefore, would be classified under the provision for natural
polymers, other, polysaccharides and their derivatives.
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Based on the foregoing analysis, we conclude that the imported
article should be classified under subheading 3913.90.2050, HTSUSA,
and subject to a compound general rate of duty of 2.2/kg plus 7.7
percent ad valorem.
John Durant, Director
Commercial Rulings Division