CLA-2 OT:RR:CTF:CPMM H279018 MAB
2922.49.4050
Port Director
Service Port New York/Newark
U.S. Customs and Border Protection
1210 Corbin Street
Elizabeth, NJ 07201
Attn: Jennifer Tagliaferro, Supervisory Import Specialist
Iris Blumberg, Import Specialist
RE: Protest and Application for Further Review of Protest No. 4601-16-100436; Beta-Alanine, and D-Aspartic Acid
Dear Port Director:
This is in response to the Application for Further Review (AFR) of Protest Number 4601-16-100436, dated May 9, 2016, timely filed by Sandler, Travis & Rosenberg (Counsel), on behalf of Crossroad Ingredients, LLC (Protestant). The AFR concerns the U.S. Customs and Border Protection’s (CBP) classification of one entry of Beta-Alanine (CAS #107-95-9) and D-Aspartic Acid (CAS #1783-96-6) without the benefit of duty free treatment under the Harmonized Tariff Schedule of the United States (HTSUS). Protestant did not submit samples for inspection, but we considered descriptions of the subject merchandise.
FACTS:
Protestant filed this AFR in regard to the entry of Beta-Alanine (CAS #107-95-9) and D-Aspartic Acid (CAS #1783-96-6).
Protestant entered the subject merchandise at the Port of New York/Newark on May 26, 2015, in subheadings 2922.49.4010, HTSUSA (Annotated), which provides for, “Oxygen-function amino-compounds: Amino-acids, other than those containing more than one kind of oxygen function, and their esters; salts thereof: Other: Other: Amino Acids…Alanine” and 2922.49.4015, HTSUSA, which provides for, “Oxygen-function amino-compounds: Amino-acids, other than those containing more than one kind of oxygen function, and their esters; salts thereof: Other: Other: Amino Acids…I-Aspartic acid.” Protestant claimed Column 1 duty-free treatment under Special Tariff Program “K” or the “Agreement on Trade in Pharmaceutical Products” under the HTSUS. CBP liquidated the entry on April 29, 2016, under the same subheadings but without duty-free treatment and at the Column 1 general rate of duty at 4.5%. Protestant claims classification as entered.
ISSUES:
1/ Whether the subject D-Aspartic Acid (CAS #1783-96-6) is classified in subheading 2922.49.4015, HTSUSA, as “I-Aspartic acid” or in subheading 2922.49.4050 as “Other.”
2/ Whether the subject merchandise is eligible for duty free treatment pursuant to General Note 13, HTSUS.
LAW AND ANALYSIS:
Initially, we note that this matter is protestable under 18 U.S.C. § 1514(a), as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2003. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108-429 § 2103(2)(B)(ii),(iii) (codified as amended at
19 U.S.C. § 1514(c)(3)(2006)).
Further Review of Protest No. 4601-16-100436 is properly accorded to the Protestant pursuant to 19 C.F.R. § 174.24(b) and (c) because the decision against which the protest was filed is alleged to involve matters previously not ruled upon by the Commissioner of Customs or his designee or by the Customs courts. Specifically, previous rulings on merchandise similar to the subject merchandise neither addressed nor considered the eligibility to duty free treatment under General Note 13.
Merchandise imported into the United States is classified under the HTSUS. 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 HTSUS and are to be considered statutory provisions of law for all purposes.
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. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The 2015 HTSUS subheadings under consideration are the following:
2922 Oxygen-function amino-compounds:
Amino-alcohols, other than those containing more than one
kind of oxygen function, their ethers and esters; salts thereof:
2922 .49 Other:
Other:
2922.49.40 Amino acids
2922.49.4010 Alanine
2922.49.4015 l-Aspartic acid
2922.49.4050 Other
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General Note 13 to the HTSUS, states, in relevant part:
Pharmaceutical products. Whenever a rate of duty of “Free” followed by the symbol “K” in parentheses appears in the “Special” subcolumn for a heading or subheading, any product (by whatever name known) classifiable in such provision which is the product
of a country eligible for tariff treatment under column 1 shall be entered free of duty,
provided that such product is included in the pharmaceutical appendix to the tariff schedule. Products in the pharmaceutical appendix include the salts, esters and hydrates of the International Non-proprietary Names (INN) products enumerated in table 1 of the appendix that contain in their names any of the prefixes or suffixes listed in
table 2 of the appendix, provided that any such salt, ester or hydrate is classifiable in
the same 6-digit tariff provision as the relevant product enumerated in table 1.
Table 1 provides:
This table enumerates products described by International Non-proprietary Names INN which shall be entered free of duty under general note 13 to the tariff schedule. The
Chemical Abstracts Service CAS registry numbers also set forth in this table are
included to assist in the identification of the products concerned. For purposes of the
tariff schedule, any references to a product enumerated in this table includes such
product by such product by whatever name known.
Table 2 provides:
Sales, esters and hydrates of the products enumerated in table 1 above that contain in their names any of the prefixes or suffixes listed below shall also be entered free of duty under general note 13 to the tariff schedule, provided that any such salt, ester or hydrate is classifiable in the same 6-digit tariff provision as the relevant product enumerated in table 1. For purposes of the tariff schedule, any reference to a product covered by this table includes such product by whatever name known.
Table 3 provides:
This table enumerates further products which shall be entered free of duty under general note 13 to the tariff schedule. The Chemical Abstracts Service CAS registry numbers also set forth in the table are included to assist in the identification of the products concerned. For purposes of the tariff schedule, any references to a product enumerated in this table includes such product by whatever name known.
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Beta-Alanine, also known as ß-Alanine, 3-Aminopropronic acid, and Beta-Aminopropanoic acid, is a nonaromatic amino acid used as a pharmaceutical intermediate. D-Aspartic acid is an amino acid also used as a pharmaceutical intermediate.
The Chemical Abstract Service (“CAS”) registry numbers of the American Chemical Society and structures for Beta-Alanine (CAS #107-95-9) and D-Aspartic Acid (CAS #1783-96-6) are not listed in Table 1 of the Pharmaceutical Appendix. As Protestant notes, Alanine (CAS #56-41-7) and Aspartic Acid (CAS #56-84-8) are listed in Table 1. Protestant therefore reasons that since a portion of the names of the instant chemical products are included in Table 1, they are eligible for duty free treatment pursuant to General Note 13. Protestant asserts that General Note 13 requires this and that in Headquarters Ruling (“HQ”) H011012, dated August 20, 2007, CBP held that CAS numbers are not dispositive.
The instant chemical products, Beta-Alanine and D-Aspartic Acid, are not the same either in name or structure as Alanine and Aspartic Acid. Simply containing part of a name does not indicate that it is the same product. There are no synonyms or other names known for these products that imply they are the same as the listed name but known by these names. We note, too, that in no instance is there any language to include isomers of Table 1 listed chemicals in the eligible Pharmaceutical Appendix products. CBP cannot simply expand the Pharmaceutical Appendix to include chemical products which are not listed in the Tables. Isomers are not eligible unless they are specifically named. In pertinent part, the various isomers do not contain the same reactive sites, and are therefore specific to certain uses. Prefixes such as D, L, S, O, M, P, etc., refer to various isomeric differences in the chemical products. That is, they are different and distinct chemical species. They are not synonyms and cannot be considered under the “whatever name known” references in the Tables. They do not refer to salts, esters or hydrates of those species. Therefore, they are not eligible for duty-free treatment under GN 13.
In the ruling Protestant cites (HQ H011012), it overlooks that CBP clearly states: “Accordingly, we stated that CBP had no statutory authority to expand the Pharmaceutical Appendix.” The same principle applies in regard to this matter. CBP cannot expand or modify the statutory language included in the Pharmaceutical Appendix.
The instant chemical products are Beta-Alanine (CAS #107-95-9) and D-Aspartic Acid (CAS #1783-96-6). These are distinct chemical species that are not present in the Tables of the Pharmaceutical Appendix and therefore are not eligible for Column 1 duty-free treatment under Special Tariff Program “K” or the “Agreement on Trade in Pharmaceutical Products” under the HTSUS. Furthermore, as the statistical breakout for 2922.49.4015 specifically names a particular isomer, l-aspartic acid, a different isomer, D-aspartic acid, cannot be classified there. See New York Ruling Letters (NY) L87227, dated September 21,,2005 and NY 894022, dated February 14, 1994.
HOLDING:
By application of GRI 1, Beta-Alanine (CAS #107-95-9) and D-Aspartic Acid (CAS #1783-96-6) are classified in heading 2922, HTSUS. Specifically, Beta-Alanine (CAS #107-95-9) is provided for in subheading 2922.49.4010, HTSUSA (Annotated), which provides for, “Oxygen-function amino-compounds: Amino-acids, other than those containing more than one kind of oxygen function, and their esters; salts thereof: Other: Other: Amino Acids…Alanine” and D-Aspartic Acid (CAS #1783-96-6) is provided for in subheading 2922.49.4050, HTSUSA, which provides for, “Oxygen-function amino-compounds: Amino-acids, other than those containing more than one kind of oxygen function, and their esters; salts thereof: Other: Other: Amino Acids…Other.” The 2015 column one, general rate of duty is 4.2%, ad valorem.
You are instructed to DENY the protest.
In accordance with sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entries in accordance with the decision must be accomplished prior to the mailing the decision.
Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (“CROSS”), at http://rulings.cbp.gov/, and other methods of public distribution.
Sincerely,
Craig T. Clark, Director
Commercial Trade and Facilitation Division