CLA-2 RR:CR:GC 967088AM
Customs and Border Protection
10 Causeway Street-Room 603
Boston, MA 02222
Re: Protest 0401-04-100048; Purasolv® Elect Ethyl-S-Lactate
Dear Port Director:
This is our decision on Protest 0401-04-100048, filed by the broker on behalf of Purac, against your decision in the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of Purasolv® Elect Ethyl-S-Lactate.
Purasolv® Elect has the chemical name Ethyl (S)-2-Hydroxy Propionate and the CAS-No. 687-47-8. It is an ester of lactic acid, a carboxylic acid with an alcohol function used in food, industrial, cosmetic and pharmaceutical industries.
The subject protest was filed on March 1, 2004, covering one entry liquidated on December 19, 2003. Protestant entered the product under subheading 2918.11.10, HTSUS, the provision for lactic acid and it was liquidated as such. Protestant now claims that 2918.11.50, HTSUS, the provision for esters of lactic acid is the correct classification for the merchandise. You believe that based on the information provided, the substance is a mixture of chemicals and therefore should be classified in subheading 3824.90.91, HTSUS, the provision for non-aromatic mixtures.
Is Purasolv® Elect lactic acid, an ester of lactic acid, or a mixture of chemical compounds?
LAW AND ANALYSIS:
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 and, unless otherwise required, according to the remaining GRIs taken in their appropriate 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 HTSUS, 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 HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The HTSUS provisions under consideration are the following:
2918 Carboxylic acids with additional oxygen function and their anhydrides, halides, peroxides and peroxyacids; their halogenated, sulfonated, nitrated or nitrosated derivatives:
Carboxylic acids with alcohol function but without other oxygen function, their anhydrides, halides, peroxides, peroxyacids and their derivatives:
2918.11 Lactic acid, its salts and esters:
2918.11.10 Lactic acid
* * * * *
Prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included;
Chapter Note 1(a) to Chapter 29, HTSUS, states, in pertinent part, "Except where the context otherwise requires, the headings of this chapter apply only to: (a) Separately defined organic compounds, whether or not containing
impurities, . . . ."
The instant merchandise is a separate chemically defined compound represented by a chemical formula. The product is not a mixture of chemical compounds, but rather a combination of functional groups (a carboxylic acid combined with an alcohol group) to yield one chemical compound. Hence, the product cannot be classified in heading 3824, HTSUS.
Furthermore, the hydrogen on the carboxylic acid functional group of lactic acid has been substituted with an ethyl group. Therefore, the product is an ester of lactic acid rather than lactic acid itself. Hence, the substance is classified in subheading 2918.11.50 as an ester of lactic acid.
Purasolv® Elect Ethyl-S-Lactate is classified in subheading 2918.11.5000, HTSUSA (annotated), the provision for "Carboxylic acids with additional oxygen function and their anhydrides, halides, peroxides and peroxyacids; their halogenated, sulfonated, nitrated or nitrosated derivatives: Carboxylic acids with alcohol function but without other oxygen function, their anhydrides, halides, peroxides, peroxyacids and their derivatives: Lactic acid, its salts and esters: Other."
You are instructed to ALLOW the protest.
In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision.
Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the
Freedom of Information Act, and other methods of public distribution.
Myles B. Harmon, Director
Commercial Rulings Division