CLA-2 RR:CR:GC 965293AM
Port Director
U.S. Customs Service
P.O. Box 55580
Portland, OR 97328-5580
Re: Protest 2904-00-100103; d-Phenylalanine, CAS 673-06-3 and l-Phenylglycine, CAS 2935-35-5
Dear Port Director:
This is our decision on Protest 2904-00-100103, timely filed by Total Logistics Resource, on behalf of Synthetech, Inc., on September 29, 2000, against your decision in the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of d-phenylalanine, CAS 673-06-3, and l-phenylglycine, CAS 2935-35-5, identified in an entry liquidated on September 29, 2000. This protest was timely filed on September 20, 2000.
FACTS:
D-phenylalanine, also known as d-(-Amino-b-phenylpropionic acid, CAS 673-06-3, is an isomer of phenylalanine. L-phenylglycine, also known as (S)-a-Aminobenzeneacetic acid, CAS 2935-35-5, is an isomer of a-Aminobenzeneacetic acid. Neither product or CAS registry number is listed in the Chemical Appendix to the HTSUS.
Protestant entered d-phenylalanine under subheading 2922.49.10, HTSUS, the provision for "Oxygen-function amino-compounds (con.): Amino-acids and their esters, other than those containing more than one kind of oxygen function; salts thereof: Other: Aromatic: m-Aminobenzoic acid, technical; p-Aminobenzoic acid; 3,5-Diaminobenzoic acid; 2-Ethylamino-5-sulfobenzoic acid; 3-(N-Ethylanilino)propionic acid, methyl ester; ß-(ß-Methoxyethoxyethyl)-4-aminobenzoate; Methyl anthranilate; and l-Phenylalanine.
Protestant entered l-phenylglycine under subheading 2922.49.05, HTSUS, the provision for "Oxygen-function amino-compounds: Amino-acids and their esters, other than those containing more than one kind of oxygen function; salts thereof: Other: Aromatic: (R)-a-Aminobenzeneacetic acid; 2-Amino-3-chlorobenzoic acid, methyl ester.
ISSUE:
What is the classification of d-phenylalanine, CAS 673-06-3 and l-phenylglycine, CAS 2935-35-5?
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).
Additional U.S. Note 3 to section VI, HTSUS, states, the following:
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.
The HTSUS provisions under consideration are, as follows:
2922: Oxygen-function amino-compounds:
Amino-acids, other than those containing more than one kind of oxygen function, and their esters; salts thereof:
Other [than Lysin and its esters; salts thereof; Glutamic acid and its salts; or Antrhranilic acid and its salts]
Aromatic:
(R)-a-Aminobenzeneacetic acid; 2-Amino-3-chlorobenzoic acid, methyl ester
Aminobenzoic acid, technical;
p-Aminobenzoic acid;
3,5-Diaminobenzoic acid;
2-Ethylamino-5-sulfobenzoic acid;
3-(N-Ethylanilino)propionic acid, methyl ester;
ß-(ß-Methoxyethoxyethyl)-4-aminobenzoate;
Methyl anthranilate; and
l-Phenylalanine
Other:
Other:
Products described in additional U.S. note 3 to section VI
In HQ 954673, dated December 10, 1993, Customs held that Quizalofop-P-ethyl, an optical isomer of Quizalofop ethyl, was not classifiable under subheading 9902.30.58, a provision specifically provided to grant Quizalofop-ethyl duty free status. In that ruling, Customs noted that the substances have different CAS numbers and are used differently.
Likewise, l-Phenylalanine and (R)-a-Aminobenzeneacetic acid are specifically listed in subheadings 2922.49.10 and 2922.49.05 respectively, whereas d-phenylalanine and (S)-a-Aminobenzeneacetic acid are not so listed. Phenylalanine, the substances of which both l- phenylalanine and d-phenylalanine are isomers and aminobenzeneacetic acid, the substances of which both (R)-a-aminobenzeneacetic acid and (S)-a-aminobenzeneacetic acid are isomers, are not listed. Hence, the eo nomine provisions are limited to specific isomers and other isomers are classified in the “other” provision.
HOLDING:
The protest should be DENIED. D-phenylalanine, CAS 673-06-3 and l-phenylglycine, CAS 2935-35-5, are classified in subheading, 2922.49.30, HTSUS, the provision for "Oxygen-function amino-compounds: Amino-acids and their esters, other than those containing more than one kind of oxygen function; salts thereof: Other: Aromatic: Other: Products 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 A. Durant, Director
Commercial Rulings Division