TARIFF No.: 3004.39.00
District Director of Customs
477 Michigan Ave.
Patrick V. McNamara Building
Detroit, Michigan 48226-2568
RE: Application For Further Review of Protest No.3801-2-101743;
Locoid and Hydrocortisone Butyrate
The following is our decision in response to the referral
dated June 30, 1992, from the Assistant District Director,
Commercial Operations Division, of the request for further review
of the above-referenced protest.
Three consumption entries covering the imported merchandise,
Locoid, a topical anti-inflammatory ointment, were liquidated on
February 21, April 10, and May 8, 1992, and a timely protest was
filed on May 21, 1992. Further submissions were submitted dated
May 26 and June 18, 1993. The entries were liquidated under the
provision for medicaments containing adrenal cortical hormones,
put up in measured doses or in forms or packings for retail sale,
subheading 3004.32.00, Harmonized Tariff Schedule of the United
States (HTSUS), with duty at 6 percent ad valorem. The ointment
contains hydrocortisone butyrate. The position of the protestant
is that the ointment containing hydrocortisone butyrate, a
derivative of hydrocortisone (an adrenal cortical hormone), is
classifiable under the basket provision of subheading 3004.39.00,
covering other medicaments containing products of heading 2937 with
duty at 3.9 percent ad valorem.
The issue is whether subheading 3004.32.00, for medicaments
containing adrenal cortical hormones, includes medicaments
containing derivatives of adrenal cortical hormones that are used
primarily as hormones.
LAW AND ANALYSIS:
Heading 2937, HTSUS, provides for "hormones, natural or
reproduced by synthesis; derivatives thereof, used primarily as
hormones, and other steroids used primarily as hormones."
Subheading 2937.21.00 provides for adrenal cortical hormones and
their derivatives, and specifically includes two adrenal cortical
hormones, cortisone and hydrocortisone and two derivatives,
prednisone and prednisolone. Subheading 2937.22.00, provides
for Halogenated derivatives of adrenal cortical hormones, and
subheading 2937.29.00, provides for other adrenal cortical hormones
and their derivatives not included in subheadings 2937.21.00 and
Subheadings 3004.31.00, 3004.32.00, and 3004.39.00, HTSUS,
provide for medicaments containing hormones or other products of
heading 2937. Subheading 3004.31.00 provides for products
containing insulin, subheading 3004.32.00, provides for products
containing adrenal cortical hormones, and subheading 3004.39.00
provides for hormones and other products of heading 2937 not
provided for in subheadings 3004.31.00 and 3004.32.00. The
protestant opines that since heading 2937 distinguishes between
hormones and their derivatives and subheading 3004.32.00 does not
specifically provide for the inclusion of derivatives of adrenal
cortical hormones, such derivatives are not classifiable under
subheading 3004.32.00 but under the basket provision for other,
Hydrocortisone butyrate is a synthetic chemical compound with
similar chemical structure and similar biochemical behavior as an
adrenal cortical hormone (hydrocortisone). However, subheading
3004.32.00 provides for adrenal cortical hormones and the
subheading does not specifically include derivatives of adrenal
cortical hormones. The position of the protestant is sustained.
An ointment containing hydrocortisone butyrate, a derivative
of hydrocortisone (an adrenal cortical hormone) that is used
primarily as a hormone, is classifiable under subheading
3004.39.00, HTSUS, as a medicament containing hormones and other
products of heading 2937 not provided for in subheadings 3004.31.00
and 3004.32.00, put up in measured doses or in forms or packings
for retail sale, with duty at the rate of 3.9 percent ad valorem.
You are instructed to allow the protest in full. A copy of
this decision should be attached to Customs Form 19, Notice of
Action, to be sent to the protestant.
In accordance with Section 3A(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 the 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, Lexis, Freedom of
Information Act and other public access channels.
John Durant, Director
Commercial Rulings Division