CLA-2 OT:RR:CTF:TCM H124921 ALS
Ms. Maylynn Ha
New Century Customs Broker, Inc.
8780 Jade LN
Rosemead, California 91770
RE: Request for Reconsideration of CBP Ruling NY N067843 (October 23, 2009); Tariff Classification of Sodium Lauroyl Glutamate; Harmonized Tariff Schedule of the United States subheading 2924.19.11
Dear Ms. Ha:
This letter responds to your September 1, 2010 request for reconsideration of Customs and Border Protection (CBP) Ruling NY N067843 (October 23, 2009) on behalf of Techno Food Ingredients USA, Inc. Your request was forwarded to this office by our National Commodity Specialist Division. The request concerns the tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of Sodium Lauroyl Glutamate. Our decision is set forth below.
FACTS:
Sodium Lauroyl Glutamate (hereinafter also referred to as “SLG”) is listed in the Chemical Abstracts Service (CAS) registry for chemical substances under the number 29923-31-7. It has a molecular weight of 351.41357. Among its synonyms are monosodium salt and Glutamic acid. It is a white powder that is used in facial cleanser, shampoo, and toothpaste, among other products.
In NY N067843, CBP classified the product under HTSUS subheading 2924.19.80, which provides for "Carboxyamide-function compounds; amide-function compounds of carbonic acid: Acyclic amides (including acyclic carbamates) and their derivatives; salts thereof: Other: Other." CBP stated in the ruling that “you state that your client believes the instant product should be classified as a surfactant in Heading 3402. However, we disagree as the chemical structure of the product was determined by the Customs and Border Protection Laboratory to be a sodium salt of a non-aromatic acyclic carboxyamide function compound and not as a surfactant. Analysis performed at the Customs and Border Protection Laboratory confirms that the product does not meet the definition of a surface active agent for classification purposes.” Your client now claims, in a letter you forwarded with your submission, that SLG should be classified under HTSUS heading 2922.
ISSUE:
Is Sodium Lauroyl Glutamate as described above properly classified under HTSUS heading 2924 as "Carboxyamide-function compounds; amide-function compounds of carbonic acid" or under HTSUS heading 2922 as “Oxygen-function amino-compounds”?
LAW AND ANALYSIS:
Classification under the HTSUS is determined in accordance with the General Rules of Interpretation (GRI) and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation (“ARI”). GRI 1 provides that the classification of goods shall be “determined according to the terms of the headings 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, GRIs 2 through 6 may be applied in order. GRI 1 states that “[t]he table of contents, alphabetical index, and titles of sections, chapters and sub-chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require,…”
The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The HTSUS provisions at issue are as follows:
2922 Oxygen-function amino-compounds:
Amino-acid, other than those containing more than one kind of oxygen function, and their esters; salts thereof:
2922.42 Glutamic acid and its salts:
2922.42.50 Other…
* * *
2924 Carboxyamide-function compounds; amide-function compounds of carbonic acid:
Acyclic amides (including acyclic carbamates) and their derivatives; salts thereof:
2924.19 Other:
2924.19.80 Other...
* * * * * * * * * *
Note 4 of HTSUS Chapter 29 provides that “[f]or the purposes of headings 2911, 2912, 2914, 2918 and 2922, ‘oxygen-function’ is to be restricted to the functions (the characteristic organic oxygen-containing groups) referred to in headings 2905 to 2920.”
Your client contends that SLG is “not appropriate to be classified into amide compound by HTSUS... due to [SLG being] a kind of compound with acetyl group only and... not an amide compound.” You make two points in support of this contention. First, your client claims that, according to the International Union of Pure and Applied Chemistry (IUPAC), the chemical substance nomenclature for SLG is sodium(2S)-2-(dodecanoylamino)-5-hydroxy-5-oxopentanoate, and its molecular formula is as shown in the image below:
Secondly, your client states that “the chemical and physical properties of [SLG] differ greatly from other common Amide compound [sic] in that most Amide compounds are liquid with the smell of ammonia gas. On the contrary, [SLG] is an almost odorless solid substance.”
Our Office of Laboratory and Scientific Services (OLSS) has reviewed your client’s submission and has analyzed a sample of the SLG at issue and reported on such. OLSS reports that chemicals in HTSUS chapter 29 are predominately classified by structure (with headings 2936 and 2941 being possible exceptions) and not by smell. OLSS also reports that SLG is in fact categorized under CAS # 29923-31-7 and has the following structure:
OLSS also reports that “[t]he product at hand [SLG] is a salt of an acyclic amide derivative, it is not a carbamate. Carbamates and products which contain both amide and carbamate functional groups would be classifiable in 2924.19.80.00. Compounds which contain only amides should be classified in 2924.19.11. In essence, the article at issue is a salt of an amide.
Pursuant to 28 U.S.C. §2639(a)(1), CBP enjoys a statutory presumption of correctness. Thus, an importer has the burden to prove by a preponderance of the evidence that a CBP decision was incorrect. Ford Motor Company v. United States, 157 F.3d 849, 855 (Fed. Cir. 1998). Furthermore, "[i]t is well settled that the methods of weighing, measuring, and testing merchandise used by [CBP] officers and the results obtained are presumed to be correct." Aluminum Company of America v. United States, 60 C.C.P.A. 148, 151, 477 F.2d 1396, 1398 (1973). Absent a conclusive showing that the testing method used by the CBP laboratory is in error, or that the CBP's laboratory results are erroneous, there is a presumption that the results are correct. See Exxon Corp. v. United States, 462 F. Supp. 378, 81 Cust. Ct. 87, C.D. 4772 (1978).
Even taking the points your client makes into consideration, your client has not met such burden in this case. Consequently, given OLSS’s report, we conclude that the findings and conclusions in NY N067843 are correct. The subject Sodium Lauroyl Glutamate is properly classified under HTSUS heading 2924 as "Carboxyamide-function compounds; amide-function compounds of carbonic acid,” more specifically under HTSUS subheading 2924.19.80, which provides for "Carboxyamide-function compounds; amide-function compounds of carbonic acid: Acyclic amides (including acyclic carbamates) and their derivatives; salts thereof: Other: Other."
HOLDING:
The subject Sodium Lauroyl Glutamate is properly classified under HTSUS heading 2924 as "Carboxyamide-function compounds; amide-function compounds of carbonic acid,” more specifically under HTSUS subheading 2924.19.80, which provides for "Carboxyamide-function compounds; amide-function compounds of carbonic acid: Acyclic amides (including acyclic carbamates) and their derivatives; salts thereof: Other: Other." The general column one rate of duty, for merchandise classified under this subheading is 6.5%.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
EFFECT ON OTHER RULINGS:
CBP Ruling NY N067843 (October 23, 2009) is hereby AFFIRMED.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division