CLA-2 RR:CR:GC 964378 AM
Mr. Joseph J. Chivini
Austin Chemical
1565 Barclay Blvd.
Buffalo Grove, IL 60089
Re: HQ 964378: (-)-Dibenzoyl-L-tartaric acid anhydrous, CAS #2743-38-6 and Dibenzoyl-D-tartaric acid, CAS #1706-42-5; and HQ 960536: (+)-DI-O-P-Toluoyl-D-Tartaric Acid, CAS #32634-68-7
Dear Mr. Chivini:
This is in reference to your letters dated March 1, 2000, and March 10, 2000, to the Director, National Commodity Specialist Division, New York, requesting rulings under the Harmonized Tariff Schedule of the United States, (HTSUS), of the chemical compounds Dibenzoyl-D-tartaric acid and (-)-Dibenzoyl-L-tartaric acid anhydrous, respectively. Your letters were referred to this office for reply.
In reviewing this issue, we have also reviewed the decision in Headquarters Ruling Letter (HQ) 960536 issued to you on May 11, 1998, concerning the classification, under the HTSUS, of the chemical compound (+)-DI-O-P-Toluoyl-D-Tartaric Acid. We have determined that the classification set forth in HQ 960536 for that compound is in error. This ruling revokes HQ 960536 and classifies the other similar substances, under the HTSUS, accordingly.
Pursuant to section 625(c)(1) Tariff Act of 1930 (19 U.S.C. 1625(c)(1)) as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, (Pub. L. 103-82, 107 Stat. 2057, 2186), notice of the proposed revocation of HQ 960536 was published on November 8, 2000, in the CUSTOMS BULLETIN, Volume 34, Number 45. No comments were received in response to this notice.
FACTS:
The substance (+)-DI-O-P-Toluoyl-D-Tartaric Acid has the molecular formula C20H18O8 and the CAS #32634-68-7. The substances (-)-Dibenzoyl-L-tartaric acid anhydrous and Dibenzoyl-D-tartaric acid are optical isomers with the molecular formula C18H14O8. (-)-Dibenzoyl-L-tartaric acid is assigned CAS registry #2743-38-6 and Dibenzoyl-D-tartaric acid is assigned CAS registry #1706-42-5. All three substances are imported in bulk as a white or off white to yellowish powder. They are used as pharmaceutical intermediates.
Following Customs laboratory report 2-97-21360-001, dated March 28, 1997, that concluded that (-) -DI-O-P-toluoyl-l-tartaric acid and (+)-DI-O-P-Toluoyl-D-Tartaric Acid is an ester of a polycarboxylic acid with alcohol function, Customs revoked New York Ruling Letter (NY) B83470, dated April 11, 1997, which classified (+)-(Di)-p-toluoyl-l-tartaric acid in subheading 2918.13.5000, HTSUS, as an ester of tartaric acid.
Lab report #2-2000-20664-001, dated March 23, 2000, concluded that Dibenzoyl-D-tartaric acid is "an ester of tartaric acid, a carboxylic acid with additional oxygen function", of subheading 2918.13.50, HTSUS. Lab report #2-2000-20665-001, dated March 23, 2000, concluded that (-)-Dibenzoyl-L-tartaric acid anhydrous is also an ester of tartaric acid of subheading 2918.13.50, HTSUS.
ISSUE:
Whether (+)-DI-O-P-Toluoyl-D-Tartaric Acid, (-)-Dibenzoyl-L-tartaric acid anhydrous, and Dibenzoyl-D-tartaric acid are classified in subheading 2918.13.50, HTSUS, as esters of tartaric acid, or in subheading 2918.19.20, HTSUS, as other aromatic carboxylic acid.
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 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 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 HTSUSA. See T.D. 89 80, 54 Fed. Reg. 35127 (August 23, 1989).
Only heading 2918, HTSUS, is under consideration as there is no dispute that the goods are specifically described therein. Using GRI 6, the following subheadings are relevant to the classification of this product:
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:
2918.13 Salts and esters of tartaric acid:
Other: [than Potassium antimony tartrate (Tartar emetic), Potassium bitartrate (Cream of tartar), and Potassium sodium tartrate (Rochelle salts)].
* * * * * * * * * * * *
Other: [than Lactic acid, its salts and ester, Tartaric acid, Salts and esters of tartaric acid, Citric acid, Salts and esters of citric acid, Gluconic acid, its salts and esters, Phenylglycolic acid (mandelic acid), its salts and esters]
Aromatic:
Other: [than Benzilic acid and Benzilic acid, methyl ester]
Products described in additional U.S. note 3 to section VI
The Chapter Notes to Chapter 29 state in pertinent part:
5(a) The esters of acid-function organic compounds of subchapters I to VII with organic compounds of these subchapters are to be classified with that compound which is classified in the heading placed last in numerical order in these subchapters.
An ester is created when an acid reacts with an alcohol. Tartaric acid contains both an acid and alcohol functional group. To create (+)-DI-O-P-Toluoyl-D-Tartaric Acid, toluic acid reacts with the alcohol functional group of tartaric acid. Toluic acid is classifiable in heading 2916, HTSUS. Tartaric acid is classifiable in heading 2918, HTSUS. By application of Chapter note 5(a), the ester is classifiable in the later heading. An ester of tartaric acid may use either the acid or alcohol functional group to create the ester. Lab report 2-97-21360-001 seems to indicate that because the ester used the alcohol rather than the acid functional group of tartaric acid, it was not an "ester of tartaric acid", classifiable in subheading 2918.13, HTSUS, but rather an "other ester of an aromatic polycarboxylic acid" of subheading 2918.19, HTSUS.
This statement is incorrect. Esters of tartaric acid can be created through a reaction using the alcohol functional group of tartaric acid. Esters of tartaric acid are eo nomine provided for in subheading 2918.13, HTSUS. Stated another way, by application of GRI 6, the goods are more specifically provided for in subheading 2918.13 than in subheading 2918.19, HTSUS.
Therefore, (+)-Di-p-toluoyl-l-tartaric acid (CAS #32634-68-7) was correctly classified in NY B83470, in subheading 2918.13.50, HTSUS, the provision for "[C]arboxylic acids with alcohol function but without other oxygen function, their anhydrides, halides, peroxides, peroxyacids and their derivatives: [S]alts and esters of tartaric acid: [O]ther." HQ 960536 should have followed the ruling in NY B83470 in classifying (+)-DI-O-P-Toluoyl-D-Tartaric Acid. Similarly, (-)-Dibenzoyl-L-tartaric acid anhydrous and Dibenzoyl-D-tartaric acid are also esters of tartaric acid.
HOLDING:
(+)-DI-O-P-Toluoyl-D-Tartaric Acid (CAS #32634-68-7), (-)-Dibenzoyl-L-tartaric acid anhydrous (CAS #2743-38-6), and Dibenzoyl-D-tartaric acid (CAS #1706-42-5) are classified in subheading 2918.13.50, HTSUS, as esters of tartaric acid.
EFFECT ON OTHER RULINGS:
HQ 960536 is revoked.
In accordance with 19 U.S.C. ยง1625(c)(1), this ruling will become effective 60 days after its publication in the CUSTOMS BULLETIN.
Sincerely,
John Durant, Director
Commercial Rulings Division