CLA-2 RR:CR:GC 961722 MGM
Port Director
U.S. Customs Service
40 S. Gay Street
Baltimore, MD 21202
Re: Protest 1303-98-100017; 2-Methylbutyric Acid (CAS # 116-53-0)
Dear Port Director:
This is our decision on Protest 1303-98-100017, concerning
your classification decision regarding the chemical compound 2-methylbutyric acid under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA).
FACTS:
The subject commodity is 2-methylbutyric acid (CAS # 116-53-1), also known as 2-methylbutyrate, 2-methylbutanoic acid, and
methylethylacetic acid. Howard & Neal, Dictionary of Chemical
Names and Synonyms. It has the chemical formula C5H10O2 . The
structure of 2-methylbutyric acid is such that four carbons are
arranged in a straight chain, with one of the terminal carbons of
this chain being a carboxyl carbon, and the alpha carbon
(adjacent to the carbonyl carbon) being bound to a methyl group.
Protestant was directed to enter the merchandise under
subheading 2915.90.1050, HTSUSA, as "Saturated acyclic
monocarboxylic acids and their anhydrides, halides, peroxides and
peroxyacids; their halogenated, sulfonated, nitrated or
nitrosated derivatives: other: acids: fatty acids of animal or
vegetable origin: other. Protestant asserts that the merchandise
is properly classified under subheading 2915.60.5000, HTSUSA, as
"Saturated acyclic monocarboxylic acids...: butyric acids,
valeric acids, their salts and esters: other. " The three
entries here protested were made April 14, 1997, May 12, 1997,
and May 24, 1997, and liquidated July 18, 1997, December 29,
1997, and December 19, 1997, respectively. All three entries
were protested on February 18, 1998.
ISSUES:
1. Whether the protest was filed in a timely manner.
2. Whether 2-methylbutyric acid is properly classified in
subheading 2915.90.1050, HTSUSA, as a fatty acid of animal or
vegetable origin.
LAW AND ANALYSIS:
Timeliness
A protest of a decision regarding the classification of
merchandise must be filed with the Customs Service within ninety
days of notice of liquidation. 19 U.S.C. 1514(c)(3)(A); 19 CFR
174.12(e). Here, the entries were liquidated July 18, 1997,
December 19, 1997, and December 29, 1997, and protested February
18, 1998. Thus, the protest was filed within the ninety day time
limit with regard to the entries liquidated on December 19, and
29, 1997, but not the entry liquidated on July 18, 1997, which
was not protested until 215 days after liquidation. The protest
is not timely filed with regard to this entry.
Classification
Merchandise imported into the U.S. is classified under the
HTSUSA. 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 HTSUSA
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 relative 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 understanding the language of the HTSUSA, 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 HTSUSA. See, T.D. 89-80, 54 Fed. Reg.
35127 (August 23, 1989).
Both parties agree that the merchandise is classified in
heading 2915, HTSUSA. Heading 2915 provides for, inter alia,
"Saturated acyclic monocarboxylic acids." 2-Methylbutyric acid
is saturated (does not contain double bonds in the hydrocarbon
chain), is acyclic, and has one carboxyl group, thus it is
described by heading 2915. This matter involves a choice among
subheadings within heading 2915 and is therefore governed
primarily by GRI 6. The protestant argues that subheading
2915.60, HTSUSA, which provides for "butyric acids, valeric
acids, their salts and esters," specifically describes 2-methylbutyric acid. EN 29.15 (V) indicates that the term
"butyric acids" is limited to n-butyric acid (CAS # 107-92-6) and
isobutyric acid (CAS # 79-31-2). These are each four-carbon
compounds which are separate and distinct from 2-methylbutanoic
acid, a five-carbon compound. Similarly, EN 29.15 (VI) states
that "valeric acids" includes only n-valeric acid (CAS # 109-52-4) and isovaleric acid (CAS # 503-74-2). n-Valeric acid, also
known as pentanoic acid, is a five-carbon straight chain with a
terminal carboxyl group, which differs from 2-methylbutanoic
acid, a branched compound. Isovaleric acid is similar to the
instant merchandise in that they are both branched, five-carbon
carboxylic acids, however the compounds differ materially in the
location of the methyl substituent. The methyl group of 2-methylbutanoic acid is attached to the "2" (alpha) carbon, while
the methyl group of isovaleric acid is bound to the "3" (beta)
carbon. Thus, the merchandise cannot be considered a valeric
acid. This is consistent with Customs position in HQ 952287,
dated October 7, 1992, which held that 2-methylbutanoic acid
ethyl ester was not an ester of valeric acid. Because this
compound is neither butyric acid nor valeric acid, nor a salt or
ester of either, it is not classififed in subheading 2915.60,
HTSUSA.
The Port Director liquidated this merchandise under
subheading 2915.90.1050, HTSUSA, which provides for fatty acids
of animal or vegetable origin other than lauric acid. Within
heading 2915, subheading 2915.90, the residual provision, is the
most appropriate six-digit subheading as the merchandise is not
described by any of the more specific provisions. Subheading
2915.90, HTSUSA, is subdivided into two categories: "acids" and
"other." This compound is properly described as an acid because
it has an intact carboxyl group, that is, it can still act as a
proton donor, unlike an ester or salt. The "acids" provision is
further subdivided into fatty acids and non-fatty acids. A fatty
acid is "an organic compound consisting of a hydrocarbon chain
and a terminal carboxyl group...chain length ranges from one
hydrogen atom (methanoic, or formic, acid, HCOOH) to nearly 30
carbon atoms...long chain fatty acids generally have an even
number of carbon atoms; unbranched chains predominate over
branched chains." A Dictionary of Chemistry, 3rd Ed., Oxford
Paperbacks, Oxford University Press. 2-Methylbutanoic acid is
described by this definition and is a fatty acid. It is not
lauric acid (C12H12O2), and is therefore properly classified in
subheading 2915.90.1050, HTSUSA.
HOLDING:
1. The protest is timely with regard to the entries liquidated
on December 19, and 29, 1997, but not for the entry liquidated
July 18, 1997. Therefore, that portion of this protest is to be
denied as being untimely filed.
2. 2-Methylbutyric acid is correctly classified under
subheading 2915.90.1050, HTSUSA. The protest should be denied.
In accordance with section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office together
with the Customs Form 19, Notice of Action, to the Protestant no
later than 60 days from the date of this letter. Any
reliquidation of the entry in accordance with this decision must
be accomplished prior to the mailing of the decision. Sixty days
from the date of this decision, the Office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS and to the public
via the Diskette Subscription Service, Freedom of Information Act
and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division