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HQ 959549




April 21, 1997

CLA-2 RR:TC:FC 959549 RC

CATEGORY: CLASSIFICATION

TARIFF NO.: 2932.90.5000 (1994); 2932.90.9000 (1995); 2932.99.9000 (1996)

Port Director of Customs
Port of San Francisco c/o Chief, Residual Liquidation and Protest Branch 555 Battery Street
San Francisco, California 94111

RE: Application for Further Review of Protest No. 2809-95-101339, filed September 20, 1995, concerning the classification of D-Glucosamine Sulfate.

Dear Director:

This is a decision on a protest filed against your decision in the classification of goods that were entered in January of 1995 and liquidated June 10, 1995.

FACTS:

The product in question, invoiced as "D-Glucosamine Sulfate," was entered under the provision for edible products of animal origin, not elsewhere specified or included, in subheading 0410.00.0000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), dutiable at 2.3 percent ad valorem. At the time of liquidation, the Customs office in San Francisco classified the product in subheading 2932.90.7000, HTSUSA. The protest indicates that prior to importation, Customs personnel advised the importer to classify the product under subheading 0410.00.0000, HTSUSA.

ISSUE:

Whether the D-Glucosamine Sulfate in question is classifiable under heading 2932, HTSUS, the provision for succinic acid derived in whole or in part from maleic anhydride or from cyclohexane; or under heading 0410, HTSUS, the provision for other acyclic polycarboxylic acids, their anhydrides, halides, peroxides, peroxyacids and their derivatives.

LAW AND ANALYSIS:

The proper classification of D-Glucosamine Sulfate, under the HTSUSA, is governed by the General Rules of Interpretation (GRI's). The systematic detail of the harmonized system is such that virtually all goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes.

In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI's may then be applied. The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI's. D-Glucosamine Sulfate is classifiable under GRI 1.

Section I of the HTS includes chapters 1 through 5 and provides for animal products, either alive, fresh, chilled or frozen, or preserved by drying or salting. Products of Section I may be processed by boning, slicing, or grinding into flours or powders. Chapter 4 includes dairy products, both fresh and fermented, eggs in shell or shelled which have been cooked or otherwise prepared, natural honey and, in heading 04.10, other edible animal products of the Section which are not provided for elsewhere. The ENs to heading 04.10 indicate the type of edible animal product provided for therein, as follows:

This heading covers products of animal origin suitable for consumption, not specified or included elsewhere in the Nomenclature.

It includes:

(1) Turtles' eggs. These are eggs laid by river or marine turtles; they may be fresh, dried or otherwise preserved.

(2) Salanganes' nests. ("birds' nests").
These consist of a substance secreted by the bird which solidifies rapidly on exposure to air.

The instant product, D-Glucosamine Sulfate, is not a product of animal origin, or preparation thereof, similar to turtles' eggs or Salanganes' nests, items included in heading 04.10, nor has this product been prepared or preserved by the methods permitted for goods of Section I. It is, in fact, a chemical compound derived from a crude natural material, that is, said to be isolated from natural chitin. The American College Dictionary, (Random House, New York: 1970), defines the term "chitin" as "a characteristic horny organic component of the cuticula of arthropods." The term "cuticula" is defined as "the outer non-cellular layer of the arthropod integument, composed of a mixture of chitin and protein, but commonly containing other hardening substances." Hawley's Condensed Chemical Dictionary, 12th ed., (Van Nostrand Reinhold Company, New York: 1933) defines "chitin" on page 256, as:

A glucosamine polysaccharide. Contains approximately 7 percent nitrogen and is structurally similar to cellulose. Principal constituent of the shells of crabs, lobsters, and beetles. It is also found in some fungi, algae, and yeasts.

Properties: White, amorphous, semitransparent mass; insoluble in the common solvents; soluble in concentrated hydrochloric, sulphuric, and nitric acids.

Use: Biological research, source of chitosan.

D-Glucosamine Sulfate is an organic chemical compound derived from chitin and designated by the Chemical Abstracts Services (CAS) Registry Name 2-amino-2-deoxy-D-glucose sulfate.

Legal note 1(a) in chapter 29 states that "Except where the context otherwise requires, the headings of this chapter apply only to: (a) Separate chemically defined organic compounds, whether or not containing impurities."

As a separate chemically defined organic compound, with its own unique CAS name, D-Glucosamine Sulfate is properly classifiable in chapter 29. The Customs Laboratory at New York identifies this compound as a non-aromatic heterocyclic compound with oxygen hetero-atoms. Heading 2932, HTSUS, provides for Heterocyclic compounds with oxygen hetero-atom(s) only; nucleic acids and their salts. Accordingly, the classification of the instant product will be within this heading.

Since this compound does not contain an unfused furan ring in its structure and is not a lactone, proper classification at the final subheading level would be in the residual subheading 2932.90.9000, HTSUSA, the provision for non-aromatic compounds (1995). The code for this provision changed from the subheading number 2932.90.5000, in 1994, to 2932.90.9000, in 1995, to 2932.99.9000, in 1996. As a result of these changes, it appears that some of the entries for this merchandise were inadvertently classified in a subheading for other aromatic compounds which carries a significantly higher duty rate.

With regard to the protestant's claim that Customs personnel advised classification of the instant product in a provision different from the provision deemed proper at liquidation, we note that the Customs Regulations, setting forth the procedure for requesting binding classification rulings, clearly indicate that oral advice is not binding on the Customs Service. See, 19 C.F.R. 177.1(d) and 177.2.

HOLDING:

The D-Glucosamine Sulfate falls into subheading 2932.90.9000, HTSUSA, the provision for other non-aromatic heterocyclic compounds with oxygen hetero-atoms, dutiable at 3.7 percent ad valorem (1995).

You are instructed to deny the protest except to the extent that reliquidation of the entries in accordance with this decision results in a partial refund of duties. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

In accordance with Section 3 A (11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

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