CLA-2 RR:CR:GC 961704 / 961716 MGM
Port Director
U.S. Customs Service
#1 La Puntilla
San Juan, PR 00901
Re: Protests 4909-98-100005 and 4909-98-100009; Sennosides
Dear Port Director:
This is our decision on Protests 4909-98-100005 and 4909-98-100009, concerning your classification decision regarding a
mixture of glycosides consisting of sennoside A (CAS # 81-27-6),
sennoside A calcium salt (CAS # 52730-36-6), sennoside B (CAS #
128-57-4), and sennoside B calcium salt (CAS # 52730-37-7), under
the Harmonized Tariff Schedule of the United States Annotated
(HTSUSA). In preparing this decision, consideration was given to
a memorandum submitted on behalf of the protestant received April
28, 1998, and to arguments presented at a meeting at Customs
Headquarters on August 18, 1998.
FACTS:
The subject commodity is a mixture of sennosides A and B and
their calcium salts. Sennoside A and sennoside B (each having
the formula C42H38O20) each contain two glucose residues in
glycosidic linkage with two anthraquinones. These compounds are
optical isomers, that is, they differ in the relative positions
of groups bound to the chiral carbons. The calcium salts of
these compounds are formed by dissociation of the acidic
hydrogens from both carboxyl groups and replacement with a single
calcium cation. Customs Laboratory Report 9-28-20005-001, dated
November 12, 1997, states that "The sample, a brown powder, has
the characteristics of sennosides. According to USP, sennosides
is a partially purified natural complex of anthraquinone
glucosides."
Protestant entered the merchandise under subheading
2938.90.0000, HTSUSA, as "Glycosides and vegetable alkaloids,
natural or reproduced by synthesis, and their salts, ethers,
esters and other derivatives: Glycosides, natural or reproduced
by synthesis, and their salts, ethers, esters and other
derivatives: other." Protestant asserts that the merchandise is
eligible for duty-free entry pursuant to General Note 13 because
it is included in the Pharmaceutical
Appendix. In the alternative, Protestant argues that the
merchandise should be classified in heading 3003, HTSUSA, as a
mixed medicament. The entries in Protest 4909-98-100005 were
made June 11, 1997, and October 10, 1997, and were liquidated
December 12, 1997 and December 19, 1997, respectively. Protest
4909-98-100005 was timely filed on March 10, 1998. The entries
in Protest 4909-98-100009 were made August 8, 1997, and September
5, 1997, and were liquidated March 13, 1998. A protest was
timely filed on April 1, 1998.
ISSUE:
1. Whether mixtures of sennosides are classified in subheading
2938.90.0000, HTSUSA.
2. If so, whether this merchandise is listed in the
Pharmaceutical Appendix and therefore entitled to duty-free
entry.
LAW AND ANALYSIS:
Classification
Merchandise imported into the U.S. is classified under the
HTSUSA. Tariff classification is governed by the principles set
forth in the General Rules of Interpretation (GRIs) and, in the
absence of special language or context which requires otherwise,
by the Additional U.S. Rules of Interpretation. The GRIs and the
Additional U.S. Rules of Interpretation are part of the HTSUSA
and are to be considered statutory provisions of law.
GRI 1 requires that classification be determined first
according to the terms of the headings of the tariff schedule and
any relative section or chapter notes and, unless otherwise
required, according to the remaining GRIs taken in order. GRI 6
requires that the classification of goods in the subheadings of
headings shall be determined according to the terms of those
subheadings, any related subheading notes and mutatis mutandis,
to the GRIs.
In understanding the language of the HTSUSA, the Explanatory
Notes (ENs) of the Harmonized Commodity Description and Coding
System may be utilized. The ENs, although not dispositive or
legally binding, provide a commentary on the scope of each
heading, and are generally indicative of the proper
interpretation of the HTSUSA. See, T.D. 89-80, 54 Fed. Reg.
35127 (August 23, 1989).
The protestant, in its primary argument, urges that
sennosides should be classified in subheading 2938.90.00, HTSUSA.
This is in agreement with your classification. Headings of
Chapter 29 apply to mixtures of two or more isomers of the same
organic compound. Chapter 29, Note 1(b). Heading 2938 includes
glycosides and their salts. A glycoside is "any one of a group
of compounds consisting of a pyranose sugar residue, such as
glucose, linked to a noncarbohydrate residue (R) by a glycosidic
bond." Daintith, A Dictionary of Chemistry, third ed., Oxford
Paperback Reference. EN 29.38 states that this heading also
covers natural mixtures of glycosides and their derivatives.
Thus, this heading includes a natural mixture of sennosides and
their calcium salts.
Within heading 2938, there are only two subheadings. The
first is an eo nomine provision for rutoside (C27H30O16 ; CAS #
153-18-4) and its derivatives; the second is a residual provision
for "other" glycosides. As sennosides differ from rutoside, this
merchandise is properly classified in the residual provision,
subheading 2938.90.00, HTSUSA.
In the alternative, protestant argues that the merchandise
should be classified in subheading 3003.90.00, HTSUSA, as
"Medicaments...consisting of two or more constituents which have
been mixed together for therapeutic or prophylactic uses, not put
up in measured doses or in forms or packings for retail sale:
other." However, Note 3(a)(2) to Chapter 30 states that goods of
Chapter 29 are to be treated as unmixed products for the purposes
of heading 3003. Therefore, this merchandise, which is
classifiable in Chapter 29, is not "mixed," and cannot be
classified in heading 3003.
Duty-Free Treatment
Protestant argues that, if the merchandise is properly
classified in subheading 2938.90.00, it is entitled to duty-free
entry because the rate of duty "Free" followed by the symbol "K"
in parantheses appears in the "Special" subcolumn for this
subheading and the merchandise is listed in the pharmaceutical
appendix to the tariff schedule. General Note 13 to the Tariff
Schedule. Table 3 of the Pharmaceutical Appendix reads, in part:
Product Name CAS Number
Sennoside A 81-27-6
Sennoside A, calcium salt 52730-36-6
Sennoside B 128-57-4
Sennoside B, calcium salt 52730-37-7.
There is no listing for "sennosides" or "mixed sennosides." The
merchandise being entered is a powder which is a mixture of all
four of the above compounds. A product is not entitled to duty-free treatment unless it is actually listed in the Pharmaceutical
Appendix. Despite having each of its component compounds
included in the Appendix, this merchandise, a mixture of
sennosides, is not itself listed in the Pharmaceutical Appendix.
Customs has no statutory authority to expand the Pharmaceutical
Appendix. The subject merchandise is therefore not covered by
General Note 13 and is not eligible for duty-free entry.
HOLDING:
1. Naturally occurring mixtures of sennosides are correctly
classified under subheading 2938.90.00, HTSUSA.
2. The merchandise is not listed in the pharmaceutical appendix
and is not eligible for duty-free entry.
The protest is DENIED.
In accordance with section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office,
together with the Customs Form 19, Notice of Action, to the
Protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with this decision
must be accomplished prior to the mailing of the decision. Sixty
days from the date of this decision, the Office of Regulations
and Rulings will take steps to make the decision available to
Customs personnel via the Customs Rulings Module in ACS and to
the public via the Diskette Subscription Service, Freedom of
Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division