CLA-2 OT:RR:CTF:TCM H034672 JER
Laura Mannisto
Interchem Corporation
120 Route 17 North, Suite 115
P.O. Box 1579
Paramus, NJ 07653-1579
RE: Modification of NY J83633; Diethyl-4-Toluenesulfonyloxmethyl Phosphate
Dear Ms. Mannisto:
On June 12, 2003, U.S. Customs and Border Protection (“CBP”) issued New York Ruling Letter (“NY”) J83633 to you classifying, in relevant part, Diethyl-4-Toluenesulfonyloxmethyl Phosphate in heading 2930 of the Harmonized Tariff Schedule of the United States (“HTSUS”). After reviewing NY J83633, we have found that ruling to be incorrect. For the reasons set forth in this ruling, we are modifying NY J83633.
Pursuant to 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, 2186 (1993), notice of the proposed revocation was published on May 29, 2009, in the Customs Bulletin, Volume 43, No. 22. No comments were received in response to the notice.
FACTS:
Diethyl-4-Toluenesulfonyloxmethyl Phosphate (C.A.S. 31618-90-3) also referred to as Diethyl (Tosyloxy) Methylphosphonate is an aromatic chemical compound which is used as a pharmaceutical intermediate, i.e. adjuvants, diluent or carriers. According to the CBP Laboratory, the chemical structure of Diethyl-4-TP contains three functional groups which include an organo-phosphorus group, an organo-sulfur group and an ester of inorganic acid.
ISSUE:
Whether the subject Diethyl-4-Toluenesulfonyloxmethyl Phosphate is classified in heading 2930, HTSUS, as an organo-sulfur compound or under heading 2931, HTSUS, as an other organo-inorganic compound.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The HTSUS provisions under consideration are as follows:
2920 Esters of other inorganic acids of nonmetals (excluding esters of hydrogen halides) and their salts; their halogenated, sulfonated, nitrated or nitrosated derivatives:
2920.90 Other:
Aromatic:
2920.90.20 Other….
2930 Organo-sulfur compounds:
* * *
2930.90 Other
Aromatic:
Other:
2930.90.2900 Other……
2931 Other organo-ingoranic compounds:
Aromatic:
* * *
Other:
Other:
Other:
2931.00.30 Products described in additional U.S. note 3 to section VI
Note 3 to Chapter 29, HTSUS, provides that:
Goods which could be included in two or more of the headings of this chapter are to be classified in that one of those headings which occurs last in numerical order.
Furthermore, Additional U.S. Note 3 to Section VI, HTSUS, provides that:
The term “products described in additional U.S. note 3 to section VI” refers to any product not listed in the Chemical Appendix to the Tariff Schedule and--
(a) For which the importer furnishes the Chemical Abstracts Service (C.A.S.) registry number and certifies that such registry number is not listed in the Chemical Appendix to the Tariff Schedule; or
(b) Which the importer certifies not to have a C.A.S. registry number and not to be listed in the Chemical Appendix to the Tariff Schedule, either under the name used to make Customs entry or under any other name by which it may be known.
In NY J83633, CBP classified three chemical compounds referred to respectively as 3-Phenylproprionic Acid, Citalopram Hydrobromide and Diethyl-4-Toluenesulfonyloxmethyl Phosphate. This decision is limited to the classification of the Diethyl-4-Toluenesulfonyloxmethyl Phosphate (hereinafter Diethyl-4-TP).
The subject aromatic chemical compound contains esters of inorganic acids, classified in heading 2920, HTSUS. In addition, the subject compound also contains organo-sulfur, classified in heading 2930, HTSUS, and organo-phosphorus, classified in heading 2931, HTSUS. Based on the chemical structure of the subject compound, we find that the Diethyl-4-Toluenesulfonyloxmethyl Phosphate is prima facie included in more than one heading of Chapter 29, namely, heading 2920, HTSUS; heading 2930, HTSUS and heading 2931, HTSUS.
As such, the subject Diethyl-4-TP is within the purview of Note 3 to Chapter 29. Accordingly, the Diethyl-4-TP is classified in heading 2931, HTSUS, which occurs last in numerical order.
The subject Diethyl-4-TP (C.A.S. 31618-90-3) is not listed in the Chemical Appendix to the HTSUS and the C.A.S. registry number is also not listed on the Chemical Appendix to the HTSUS. Therefore, the subject Diethyl-4-TP is deemed a product described in Additional U.S. Note 3 to Section VI and is thus classified in subheading 2931.00.30, HTSUS.
HOLDING:
By application of GRI 1 and pursuant to Note 3 to Chapter 29, HTSUS, the subject Diethyl-4-Toluenesulfonyloxmethyl Phosphate is classifiable under heading 2931, HTSUS. Specifically, the product is classified under subheading 2931.00.30, HTSUS, which provides for: “Other organo-inorganic compounds: Aromatic: Other: Other: Other: Products described in additional U.S. note 3 to section VI.” Pursuant to GN 13, the column one, special rate of duty is Free.
EFFECT ON OTHER RULINGS:
NY J83633, dated June 12, 2003, is hereby modified. In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division