CLA-2 CO:R:C:F 089353 EAB

District Director
U.S. Customs Service
111 West Huron Street
Buffalo, New York 14202

Re: Application for Further Review of Protest No. 0901-0- 700791, dated September 6, 1990, concerning aprotinin; CAS 9807-70-1

Dear Sir:

This is a decision on a protest filed September 6, 1990 against your decision in the classification of merchandise liquidated June 8, 1990.

FACTS:

The protestant entered the goods in all instances under subheading 3001.90.0000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), providing in part for extracts of glands or other organs or of their secretions for organo- therapeutic uses; other human or animal substances prepared for therapeutic or prophylactic uses, not elsewhere specified or included; other (than glands and other organs, dried or extracts of glands or other organs or of their secretions), to be entered free of duty. You reclassified the goods under subheading 2933.90.3700, HTSUSA, and advanced the rate to 13.5 percent ad valorem.

Protestant urges that the goods be classified under subheading 3001.90.0000, or 2922.49.5000, or 2942.00.5000.

Aprotinin is a single chain polypeptide containing 58 amino acids of known sequence. Assigned CAS #9087-70-1, it is used as a proteolytic inhibitor in radioimmunoassays of polypeptide hormones. Found generally in tissues and blood, its highest concentration is in the bovine parotid gland, pancreas and lungs. Obtained by extraction and purified by a suitable process such as gel filtration, in this case, it is extracted from the lungs of Canadian cattle and further purified for use as a therapeutic to inhibit the activity of selected enzymes and, thereby, to minimize the risk of microbial contamination.

The peptide chain contains non-aromatic amino acid residues as well as aromatic amide residues, organo-sulfur residues and heterocyclic residues.

The protestant has furnished the CAS Registry No. 9087-70-1 and certified that aprotinin is not listed in the Chemical Appendix to the Tariff Schedule.

The parties hereto agree that aprotinin is a separate chemically defined compound.

ISSUE:

What is the proper classification under the HTSUSA of aprotinin, CAS #9087-70-1?

LAW AND ANALYSIS:

Merchandise imported into the U.S. is classified under the HTSUSA. The tariff classification of merchandise under the HTSUSA is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which otherwise requires, 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 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 and, unless otherwise required, according to the remaining GRI's taken in order.

Explanatory Notes to the Harmonized Commodity Description and Coding System represent the official interpretation of the Customs Cooperation Council on the scope of each heading, and, although neither binding upon the contracting parties to the Harmonized System Convention nor considered to be dispositive interpretations, they should be consulted on the proper scope of the System.

Exclusion (c) to Explanatory Note 30.01, states unequivocally that heading 3001 excludes separate chemically defined compounds obtained by the treatment of extracts of glands or other organs. We are of the opinion that aprotinin is not properly classifiable under heading 3001, HTSUSA.

Chapter notes are part of the legal text of the HTSUSA and are to be considered statutory provisions of law for all purposes. Moreover, as indicated above, chapter notes, together with the terms of the headings and section notes, are the principal authority by which merchandise is to be classified under the Schedule - chapter notes are to be considered mandatory authority for the classification of merchandise under the HTSUSA.

Chapter Note 3, Chapter 29, HTSUSA, provides that "[g]oods 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."

Heading 2922, HTSUSA, includes oxygen-function amino- compounds; amino-alcohols, their ethers and esters, other than those containing more than one kind of oxygen function.

Heading 2933, HTSUSA, includes heterocyclic compounds with nitrogen hetero-atom(s) only.

Heading 2942, HTSUSA, is a basket provision for other organic compounds, as more specifically set out therein. It will not be considered a possible classification unless all other provisions fail.

Peptides (or polypeptides) may be considered polymers of amino acids which are united via amide bonds to form chains which incorporate as few as two or as many as several thousand amino acid residues. The generic structure of such a residue is (NH- CHR-CO)X, where X is an integer and R represents a side chain of diverse composition, i.e, alkyl, aryl, heterocyclic, phenyl, etc. In the case of aprotinin, X=58 and R is, to name several side chains relevant to its proper classification under the HTSUSA, arginine (Arg), proline (Pro), asparagine (Asp), phenylalanine (Phe) and cystine (Cys). Both Arg and Asp are aliphatic, terminating in an amino and amide group, respectively. Cys is a sulfur-containing aliphatic chain. Pro terminates in a heterocyclic ring, whereas Phe bears an aromatic terminus. Since heading 2922 does not exclude a compound having such side chains, aprotinin could be classified thereunder.

Heading 2933, HTSUSA, also describes aprotinin, since that heading includes, in addition to oxygen-function amino-compounds, heterocyclic compounds with nitrogen hetero-atom/s only.

Given the fact that aprotinin is a single chemically defined compound having the structure that it does, we are of the opinion that Chapter Note 3, Chapter 29, HTSUSA, requires that it be classifiable under heading 2933, subheading 2933.90.3700, HTSUSA.

HOLDING:

The protest should be denied.

Aprotinin is a single chemically defined compound containing nitrogen hetero-atoms only and is properly classifiable under subheading 2933.90.3700, HTSUSA, which provides for heterocyclic compounds with nitrogen hetero-atom(s) only; other; aromatic or modified aromatic; other; drugs; other; other products described in additional U.S. note 3 to section VI of the Schedule.

A copy of this decision should be attached to the Customs Form 19 and mailed to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director