CLA-2 RR:CR:GC 964809AM
Port Director
U.S. Customs Service
Kennedy Airport, Building 77
Jamaica, N.Y. 11430
Re: Protest 1001-00-103756; ascorbyl acid 2-glucoside
Dear Port Director:
This is our decision on Protest 1001-00-103756, filed by Presperse Inc., against your decision in the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of ascorbyl acid 2-glucoside (hereinafter “ascorbyl glucoside”), a vitamin C derivative used in cosmetics.
FACTS:
Ascorbyl glucoside is a pure, unmixed chemical compound vitamin C derivative. Its CAS registry number is 129499-78-1 and is also known as alpha-d-glucopyransosyl-l-ascorbic acid.
Customs Laboratory report 2-1999-22846, dated April 10, 2000, states, in pertinent part, the following: “[T]he product, . . . is a sugar ether with ascorbic acid, having a glycosidic linkage. We find no evidence that this compound is a naturally occurring glycoside.”
According to the protestant, “Ascorbyl Glucoside is the glycoside created through the condensation reaction of Ascorbic acid and Glucose. In skin care applications the Ascorbyl Glucoside is broken down by glucosidases (enzymes) in the skin to produce free Ascorbic acid (Vitamin C), which is the active moiety of the compound.”
The two entries pertaining to the subject protest were liquidated on July 28 and August 11, 2000. The subject protest was timely filed on August 28, 2000. Protestant entered the product under subheading 2936.27.00, HTSUS, the provision for "[P]rovitamins and vitamins, natural or reproduced by synthesis (including natural concentrates), derivatives thereof used primarily as vitamins, and intermixtures of the foregoing, whether or not in any solvent; [V]itamin C (Ascorbic acid) and its derivatives." The entries were liquidated under subheading 2940.00.60, HTSUS, the provision for “[S]ugars, chemically pure, other than sucrose, lactose, maltose, glucose and fructose; [S]ugar ethers and sugar esters and their salts, other than products of heading 2937, 2938 or 2939: [O]ther.
ISSUE:
What is the classification of ascorbyl glucoside under the HTSUS?
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:
Provitamins and vitamins, natural or reproduced by synthesis (including natural concentrates), derivatives thereof used primarily as vitamins, and intermixtures of the foregoing, whether or not in any solvent:
* * * * *
2938 Glycosides, natural or reproduced by synthesis, and their salts, ethers, esters and other derivatives:
* * * * *
2940 Sugar ethers and sugar esters and their salts, other than products of heading 2937, 2938 or 2939:
Chapter note 3 to chapter 29 states, in pertinent part, "goods which could be included in two or more of the headings of this chapter are to be classified in that one of the headings which occurs last in numerical order.”
Arguendo, the merchandise is classifiable in heading 2936, HTSUS (c.f. HQs 963830, 964589, 964710, 965022, dated March 8, 2002, which found that Vitamin C derivatives used in skin care products were not “primarily used as vitamins” and therefore not classifiable in heading 2936, HTSUS), headings 2938 and 2940, HTSUS, would each take precedence under chapter note 3. Therefore, the question becomes whether the substance can be classified in either of these headings.
This compound is not a derivative of a naturally occurring or reproduced glycoside although it contains a glycosidic linkage. Rather, it is a sugar ether given that an oxygen atom is interposed between glucose (a sugar molecule) and ascorbic acid in the molecular structure. Hence, this compound is properly classified in heading 2940, HTSUS.
HOLDING:
Ascorbyl glucoside is classified in subheading 2940.00.60, HTSUS, the provision for “[S]ugars, chemically pure, other than sucrose, lactose, maltose, glucose and fructose; [S]ugar ethers and sugar esters and their salts, other than products of heading 2937, 2938 or 2939: [O]ther. The protest is DENIED.
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 A. Durant, Director
Commercial Rulings Division