Area Port Director
U.S. Customs Service
#1 La Puntilla
San Juan, Puerto Rico 00901
Re: Protest 4909-02-100041; microcrystalline cellulose
Dear Port Director:
This is in response to Protest 4909-02-100041, submitted by counsel on behalf of FMC Corporation and Ochoa Corporation, concerning your classification of microcrystaline cellulose (MCC), under the Harmonized Tariff Schedule of the United States (HTSUS). The valuation questions were answered previously in Headquarters Ruling Letter (HQ) 548173.
The protest refers to eleven entries in April and May of 2001, claiming classification in subheading 3912.90.00, HTSUS, the provision for "[c]ellulose and its chemical derivatives, not elsewhere specified or included, in primary forms: [o]ther." The entries were liquidated on March 22, 2002, under subheading 3913.90.20, HTSUS, the provision for "[n]atural polymers (for example, alginic acid) and modified natural polymers (for example, hardened proteins, chemical derivatives of natural rubber), not elsewhere specified or included, in primary forms: [o]ther: [p]olysaccharides and their derivatives." The protest was timely filed on June 20, 2002.
Cellulose and microcrystalline cellulose have the chemical formula (C6H10O5)n and are assigned CAS 9004-34-6. Cellulose and microcrystalline cellulose have the same absolute density and solubility; neither is soluble in water. Microcrystalline cellulose is used in producing a pharmaceutical intermediate.
Customs Laboratory Report SJ20020074, dated January 30, 2002, states, in pertinent part, the following: "[t]he sample, a white powder, is microcrystalline cellulose. The sample is a modified natural polymer of derivated polysaccharides."
Cellulose is "a natural carbohydrate high polymer (polysaccharide) consisting of anhydroglucose units joined by an oxygen linkage to form long molecular chains. . . . The degree of polymerization is from 1000 for wood pulp to 3500 for cotton fiber, giving a molecular weight from 160,000 to 560,000. Cellulose exists in three forms-(, ß and ?." Hawley's Condensed Chemical Dictionary, 12th Ed., pp. 236-7, Van Nostrand Reinhold Company, New York (1993). However, "the molecular weight of isolated cellulose is approximately 50,000." "Evaluation of the Health Aspects of Cellulose and Certain Cellulose Derivatives as Food Ingredients," Food and Drug Administration Report BF-78-7, November, 1974.
The instant cellulose has been prepared in a microcrystalline form. The process involves breaking up the network of microcrystals by acid hydrolysis and separating them by mechanical agitation. On the microscopic level, these substances are composed of colloidal microcrystals connected by molecular chains. Microcrystalline cellulose is defined as a highly purified particulate form of cellulose. Id. at 107, 784-5. Due to the decreased number of glucose monomers in the microcrystalline cellulose chain, the degree of polymerization of microcrystalline cellulose is lower than that of cellulose. Hence, the molecular weight of microcrystalline cellulose is approximately 24,000-57,000.
What is the classification, under the HTSUS, of microcrystalline cellulose?
LAW AND ANALYSIS:
Merchandise imported into the U.S. 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 that 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.
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 interpreting 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. 8980, 54 Fed. Reg. 35127 (August 23, 1989).
The HTSUS headings under consideration are as follows:
3912 Cellulose and its chemical derivatives, not elsewhere specified or included, in primary forms:
3913 Natural polymers (for example, alginic acid) and modified natural polymers (for example, hardened proteins, chemical derivatives of natural rubber), not elsewhere specified or included, in primary forms:
EN 39.12 states, in pertinent part, the following:
Cellulose is a carbohydrate of high molecular weight, forming the solid structure of vegetable matter. It is contained in cotton in almost a pure state. Cellulose not elsewhere specified or included, in primary forms, falls in this heading.
Through the formation of microcrystalline cellulose, the molecular weight decreases. Although the ENs describe cellulose as a carbohydrate of high molecular weight, this statement does not preclude microcrystalline cellulose from being classified as such. Microcrystalline cellulose remains a carbohydrate with the same chemical formula as cellulose. Microcrystalline cellulose has a molecular weight within the range of isolated cellulose. Microcrystalline cellulose is known as a highly purified particulate form of cellulose within the technical literature noted above. As such, the product is more specifically provided for in heading 3912, HTSUS, as cellulose than in heading 3913, HTSUS, as a natural polymer, not elsewhere specified or included.
Our determination is consistent with a recent decision on similar merchandise published in the Compendium of Classification Opinions on the Harmonized Commodity Description and Coding System where the classification of "Cellulose powder, microcrystalline, white, obtained from alpha cellulose by acid hydrolysis which breaks up the fibres, . . . " is classified in 3912.90 of the Harmonized Tariff Schedule (HTS). See Opinion No. 3912.90 of the WCO’s Compendium of Classification Opinions, Amending Supplement No. 25 (January 2000). As we stated in T.D. 89-80, decisions in the Compendium of Classification Opinions should be treated in the same manner as the ENs, i.e., while neither legally binding nor dispositive, they provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. T.D. 89-80 further states that ENs and decisions in the Compendium of Classification Opinions “should receive considerable weight.”
This ruling is also in accordance with HQ 966069, dated February 24, 2003, discussing the revocation of New York Ruling Letter (NY) H87232, dated January 31, 2002.
The Protest should be allowed. Microcrystalline cellulose is classified in subheading 3912.90.00, HTSUS, the provision for "[c]ellulose and its chemical derivatives, not elsewhere specified or included, in primary forms: [o]ther."
In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, 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.
Myles B. Harmon
Director, Commercial Rulings Division