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