CLA-2 OT:RR:CTF:TCM H091978 CkG
Ms. Dina Donnelly
Aceto Corporation
One Hollow Lane
Lake Success, NY 11042
Re: Revocation of NY N056378; classification of D-Lysine
Dear Ms. Donnelly,
This is in reference to New York Ruling Letter (NY) N056378, issued by the Customs and Border Protection (CBP) National Commodity Specialist Division on April 6, 2009, regarding the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of D-Lysine. We have reconsidered this decision, and for the reasons set forth below, have determined that the conclusion that D-Lysine is eligible for duty free treatment pursuant to General Note 13, HTSUS, is incorrect.
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, notice proposing to revoke NY N056378 was
published on July 3, 2013, in Volume 47, Number 28, of the Customs Bulletin. No
comments were received in response to this Notice.
FACTS:
D-lysine (CAS 923-27-3) is an isomer of lysine, an essential amino acid which is not synthesized in animals, and hence must be ingested. D-lysine has a chemical formula of C6H14N2O2. A diagram of its chemical structure is included below.
ISSUE:
Whether d-lysine is eligible for duty free treatment pursuant to General Note 13, HTSUS.
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the remaining GRIs 2 through 6. GRI 6, HTSUS, requires that the GRI's be applied at the subheading level on the understanding that only subheadings at the same level are comparable. The GRI's apply in the same manner when comparing subheadings within a heading.
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:
2922.41.00: Lysine and its esters; salts thereof . . .
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Subheading Note 1 to Chapter 29:
Within any one heading of this chapter, derivatives of a chemical compound (or group of chemical compounds) are to be classified in the same subheading as that compound (or group of compounds) provided that they are not more specifically covered by any other subheading and that there is no residual subheading named "Other" in the series of subheadings concerned.
General Note 13, HTSUS, provides as follows:
Pharmaceutical products. Whenever 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 the 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, provided that any such salt, ester or hydrate is classifiable in the same 6-digit tariff provision as the relevant product enumerated in table 1.
* * * * *
In NY N056378, CBP classified D-lysine in subheading 2922.41.00, HTSUS, which provides for Lysine and its esters and salts thereof. This classification was correct; D-lysine is an amino acid, and as an isomer of Lysine it shares the same chemical formula. Pursuant to subheading note 1 to Chapter 29, HTSUS, d-lysine is not more specifically covered by any other subheading and there is no residual subheading named "Other" in the series of subheadings concerned.
However, NY N056378 also granted duty free treatment to D-lysine based on GN 13 to the HTSUS, which grants such treatment to products classified in a provision marked by a rate of duty of Free in the “Special” subcolumn followed by the symbol K, provided that the product is also listed in the pharmaceutical appendix to the tariff schedule. However, the symbol “K” does not appear in the “special” subcolumn for subheading 2922.41.00, HTSUS, nor is lysine listed in the pharmaceutical appendix. Lysine was deleted from the pharmaceutical appendix by the Annex to Presidential Proclamation 6982. See Proclamation No. 6982, 64 Fed. Reg. 16,041 (April 1, 1997). Lysine is thus no longer subject to duty free treatment pursuant to GN 13.
HOLDING:
D-Lysine is classified in heading 2922, HTSUS, specifically in subheading 2922.41.00, HTSUS, which provides for “Oxygen-function amino-compounds: Amino-acids, other than those containing more than one kind of oxygen function, and their esters; salts thereof: Lysine and its esters; salts thereof.” The 2013 column one, general rate of duty is 3.7% ad valorem.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N056378, dated April 6, 2009, is hereby revoked.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the CUSTOMS BULLETIN.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division