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HQ 952146


May 4, 1994

CLA-2-CO:R:C:F 952146K

CATEGORY: CLASSIFICATION

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

Dear Sir:

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.

FACTS:

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.

ISSUE:

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 2937.22.00.

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, subheading 3004.39.00.

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.

HOLDING:

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.

Sincerely,

John Durant, Director

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