CLA-2 RR:CR:GC 965479AM
Mr. Myron Paul Barlow
Katten Muchen Zavis
1025 Thomas Jefferson St. N.W.
East Lobby, Suite 700
Washington, D.C. 20007-5201
RE: New York ruling letter E81454; Twinsweet™
Dear Mr. Barlow:
This is our decision regarding your letter, dated December 20. 2001, on behalf of your client, Holland Sweetener, requesting reconsideration of New York Ruling Letter (NY) E81454, dated August 13, 1999, regarding the tariff classification, pursuant to the Harmonized Tariff Schedule of the United States (HTSUS), of Twinsweet™.
FACTS:
Twinsweet™ has the common name Aspartame-acesulfame. Aspartame, CAS 22839-47-0, and Acesulfame, CAS 33665-90-6 are each International non-proprietary names (INNs) individually listed in Table 1 to the Pharmaceutical Appendix to the Tariff Schedule. Aspartame-acesulfame is a white powder assigned CAS 106372-55-8, and the chemical name L-.Alpha.-Aspartyl-l-pehnylalanine, 2-methyl ester compound with 6-methyl-1,2,3-oxathiazin-4(3H)-One 2,2-dioxide (1:1). The chemical formula is C18H23O9N3S. Neither the name Aspartame-acesulfame nor the CAS number 106372-55-8 is listed in the Pharmaceutical Appendix. Customs Laboratory report 2-1999-21355-001, dated July 29, 1999, confirms the forgoing and states that the sample is an aromatic other heterocyclic compound.
ISSUE:
Is Aspartame-acesulfame entitled to duty-free entry under General Note 13 to 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 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 Pharmaceutical Appendix was incorporated into the HTSUS by Presidential Proclamation. See Proclamation No. 6763, 60 Fed. Reg. 1007 (1994). This Proclamation also added General Note 13 to the HTSUS. General note 13, HTSUS, states the following:
[W]henever a rate of duty of “Free” followed by the symbol “K” in parentheses appears in the “Special” subcolumn for a heading or subheading, any product (by whatever name known) classifiable in such provision which is a product of a country eligible for tariff treatment under column 1 shall be entered free of duty, provided that such product is included in the pharmaceutical appendix to the tariff schedule. Products in the pharmaceutical appendix include the salts, esters and hydrates of the International Non-proprietary Name (INN) products enumerated in table 1 of the appendix that contain in their names any of the prefixes or suffixes listed in table 2 of the appendix, provides that any such salt, ester or hydrate is classifiable in the same 6-digit tariff provision as the relevant product enumerated in table 1.
Counsel does not dispute classification in subheading 2934.99.39, HTSUS, the provisions for “[N]ucleic acids and their salts; other heterocyclic compunds: [O]ther: [O]ther: [P]roducts described in additional U.S. note 3 to section VI.” Rather, counsel disputes the determination that Aspartame-acesulfame is not found in the Pharmaceutical Appendix. Counsel states that Aspartame-acesulfame is a salt of Acesulfame with the suffix “dioxide” from the chemical name of Aspartame-acesulfame, listed in table 2 of the Pharmaceutical Appendix. Counsel does not state whether Aspartame-acesulfame has an INN, although it clearly is not the same as the chemical name or counsel would have so stated.
In HQ 961704/961716, dated October 14, 1998, determining the status of a mixture of sennosides each listed in the Pharmaceutical Appendix, we state that “[A] product is not entitled to duty-free treatment unless it is actually listed in the Pharmaceutical Appendix. Despite having each of its component compounds included in the Appendix, this merchandise, a mixture of sennosides, is not itself listed in the Pharmaceutical Appendix. Customs has no statutory authority to expand the Pharmaceutical Appendix.”
Likewise, Aspartame-acesulfame is not listed in the Pharmaceutical Appendix. Even assuming aspartame-acesulfame is the salt of acesulfame, neither prefix nor suffix is listed in table 2 of the Pharmaceutical Appendix. Moreover, if Aspartame-acesulfame has not been given an INN, the INN can not be listed in the Pharmaceutical Appendix. Hence, Aspartame-acesulfame is not entitled to duty free entry under General Note 13.
HOLDING:
Aspartame-acesulfame, classified in subheading 2934.99.39, HTSUS, the provision for “[N]ucleic acids and their salts; other heterocyclic compunds: [O]ther: [O]ther: [P]roducts described in additional U.S. note 3 to section VI,” is not entitled to duty free entry under General Note 13. NY E81454 is affirmed.
Sincerely,
John Durant, Director
Commercial Rulings Division