CLA-2 RR:CR:GC 964370 AM
Port Director
Port of New York
c/o Chief, Residual Liquidation and Protest Branch
1 Penn Plaza
New York, NY 10119
Re: Protest 1001-99-105522; Quercetin
Dear Port Director:
This is in regard to protest 1001-99-105522, concerning your classification of Quercetin, under the Harmonized Tariff Schedule of the United States (HTSUS). In preparing this decision, we have also taken into consideration arguments presented by counsel in a meeting at Customs Headquarters on July 24, 2001, and in a supplemental submission dated August 22, 2001.
FACTS:
Quercetin has the chemical name 2-(3,4-Dihydroxyphenyl)-3,5,7-trihydroxy-4H-1-benzopyran-4-one; 3,3',4',5,7-pentahydroxyflavone and the chemical formula C15H10O7. Merck Index, 12th Edition (Merck & Co., Inc.). The CAS registry number for Quercetin is 117-39-5. Quercetin is the chemical formed from the acid hydrolysis of Rutin, a glycoside commonly found in vegetable raw materials. When Rutin undergoes a hydrolysis reaction with sulphuric acid, the resultant hydrolytic chemical products are a sugar, comprised of glucose and rhamnose, and a non-sugar “aglycone” which is quercetin. Counsel submits evidence that the “aglycone” structure also constitutes a “flavonol” and that both quercitin and rutin are considered “bioflavanoids” in industry terms. (Supplemental submission, dated August 22, 2001, p. 3). Quercetin is imported in bulk as a yellow powder.
The merchandise was entered on October 29, and December 10, 1998, and the entries were liquidated on August 6 and October 1, 1999, under subheading 2932.99.60, HTSUS, the provision for "[H]eterocyclic compounds with oxygen hetero-atom(s) only: [C]ompounds containing an unfused furan ring (whether or not hydrogenated) in the structure: [O]ther: [O]ther: [than Aromatic]: [P]roducts described in additional U.S. note 3 to section VI." The protest was timely filed on November 4, 1999.
Counsel for the protestant argues that Quercetin should be classified under subheading 2938.10.00, HTSUS, as "Glycosides, natural or reproduced by synthesis, and their salts, ethers, esters and other derivatives: [R]utoside (Rutin) and its derivatives," claiming that the merchandise is derived from Rutin.
ISSUE:
What is the correct classification of Quercetin?
LAW AND ANALYSIS:
Merchandise imported into the U.S. 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 that 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.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any related section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in 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 interpreting 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 as follows:
2932 Heterocyclic compounds with oxygen hetero-atom(s) only: Compounds containing an unfused furan ring (whether or not hydrogenated) in the structure:
2932.99 Other:
Other: [than Aromatic]
2932.99.60 Products described in additional U.S. note 3 to section VI
* * * * * * * * * * * *
2938 Glycosides, natural or reproduced by synthesis, and their salts, ethers, esters and other derivatives:
2938.10.00 Rutoside (Rutin) and its derivatives
* * * * * * * * * *
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.
Note 4 to Chapter 29, HTSUS, states, in pertinent part, the following: "[I]n headings 2904 to 2906, 2908 to 2911 and 2913 to 2920, any reference to halogenated, sulphonated, nitrated or nitrosated derivatives includes a reference to compound derivatives, such as sulphohalogenated, nitrohalogenated, nitrosulphonated or nitrosulphohalogenated derivatives."
The EN to Sub-Chapter XII of Chapter 29, which includes heading 2938, HTSUS, states: "[I]n this Sub-Chapter, the term "derivatives" refers to chemical compounds which could be obtained from a starting compound of the heading concerned and which retain the essential characteristics of the parent compound, including its basic structure."
Counsel argues that the basic structure of rutin is the flavonol portion which remains in quercitin making both rutin and quercitin bioflavonoids with the same characteristics and properties. Counsel claims that the flavonol imparts the “essential characteristics” of a derivative of rutin and thus, quercitin is such a derivative. (Supplemental submission, dated August 22, 2001, p. 3).
Unfortunately, the terms “flavonol” and “bioflavanoid” appear nowhere in the text of the HTSUS or ENs. Nor do the ENs state that retaining “essential characteristics” of the parent compound defines the term “derivative.” Instead, the ENs qualify the “essential characteristics” language with the clause “including its (a glycoside’s) basic structure.” We disagree that the flavonol portion of rutin, the “aglycone” constitutes the basic structure of a glycoside. It is axiomatic that a glycoside (glycose var. of glucose, a type of sugar; Random House College Dictionary Revised Edition, p. 563) contains a sugar molecule.
Moreover, to be classified in heading 2938, the subject merchandise must be a glycoside or, a derivative of a glycoside. Rutin is a glycoside, however, the rutin molecule does not appear in quercetin. Rather, quercetin comprises a subset of the rutin molecule. Stated a different way, a derivative of a glycoside must be a product that has a chemical group added to the basic glycoside structure. Quercetin is not such a molecule. See NY A80606 dated February 23, 1996 and HQ 085775 dated February 27, 1990, which affirmed NY 845155 dated September 19, 1989, for similar rulings on quercetin.
Counsel argues that there are as many dictionary definition of “derivative” that define the term in accordance with his client’s position as do with Custom’s position. We agree that dictionary definitions are not dispositive in this case. However, we note that Van Nostrand's Scientific Encyclopedia, 5th Edition, defines "derivative" as "[A] term used in organic chemistry to express the relation between certain known or hypothetical substances and the compound formed from them by simple chemical processes in which the nucleus or skeleton of the parent substance exists. Id. at 764. (emphasis added). This accords with Custom’s interpretation of the ENs.
Furthermore, counsel relies on the case of Anhydrides & Chemicals, Inc. v. United States, 20 C.I.T. 345 (1996)(hereinafter "Anhydrides") rev'd on other grounds, 130 F.3d 1481 (Fed Cir. 1997). That case involved the classification of succinic acid anhydride ("SAA"), a chemical additive to foodstuffs. There, the court stated:
For purposes of the present case, the Court interprets the term 'derived' as used in subheading 2917.19.27, HTSUS, to mean to physically make one thing from another. This accords with the way the term is typically used in commerce.
Anhydrides at 346. (emphasis added).
The court found that SAA can be created in two ways, "either by removing two hydrogen atoms and one oxygen atom from succinic acid, or by adding hydrogen atoms to maleic anhydride." Id. at 348. Either method was considered to produce a derivative under the definition the court used.
However, Chapter 29 presently incorporates three different meanings of the word "derivative". The definition used in subchapter XII is closest to that found in technical literature. See Van Nostrand's, supra. Chapter 29, Note 4, which covers heading 2917, states a definition similar to that used in the Anhydrides case. Customs need not use that definition, which is explicitly circumscribed to the specific facts in Anhydrides, supra, dealing only with heading 2917, HTSUS, in the interpretation of heading 2938, HTSUS. In fact, counsel's suggestion that Customs must do so would lead to absurd results. If the aglycone moiety of a glycoside were classifiable as a glycoside, then sugar, as the other moiety, must also be classified in heading 2938, HTSUS, rather than as a sugar. We decline to follow counsel’s belief that “the court’s reasoning and holding would also apply to the definition of “derivative” in HTS subheadings 2938.10 or 2938.90. . . . (Supplemental submission, August 22, 2001, p. 4).
Lastly, counsel submits the chemical structures of commercially available bioflavonoids (Supplemental submission, August 22, 2001, Attachment D) to show that quercitin is considered a bioflavonoid. We note that many of these bioflavonoids retain the sugar molecule in their structure. Those that do not are classified in a heading other than heading 2938, HTSUS, as is quercitin.
HOLDING:
The protest is DENIED. Quercetin is classified in subheading 2932.99.60, HTSUS, the provision for "[H]eterocyclic compounds with oxygen hetero-atom(s) only: [C]ompounds containing an unfused furan ring (whether or not hydrogenated) in the structure: [O]ther: [O]ther: [than Aromatic]: [P]roducts described in additional U.S. note 3 to section VI."
In accordance with Section 3A(11)(b) of Customs Directive 099 3550 065, dated August 4, 1993, Subject: Revised Protest Directive, 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 or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division