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HQ 965280




October 2, 2001

CLA2 RR:CR:GC 965280 BJB

CATEGORY: CLASSIFICATION

TARIFF NO.: 3912.39.00

Port Director of Customs
Protest and Liquidations Unit
JFK/IA, Building 77
Jamaica, NY 11430

RE: Protest 100101101717; Hydrated Hydroxypropyl Methylcellulose; General Note 13, HTSUS.

Dear Port Director:

The following is our decision regarding protest 100101101717, which concerns the classification of hydrated hydroxypropyl methylcellulose (“HPMC''), described as a propylene glycol ether of methylcellulose, under the Harmonized Tariff Schedule of the United States (HTSUS). Customs liquidated the subject entry on February 16, 2001. Counsel on behalf of Forest Laboratories, Inc., ("the protestant"), filed the protest on April 27, 2001. We note that it was timely filed under the statutory and regulatory provisions for protests, 19 U.S.C.1514(c)(3)(A) and 19 CFR 174.12(e)(1).

In preparing this decision, consideration was given to counsel's letter dated September 21, 2001, as well as arguments counsel presented on September 26, 2001, in a telephone conference with a representative of our office.

On March 17, 1999, Customs issued NY D88210 to counsel on behalf of the protestant. In NY D88210, Customs determined that hydroxypropyl methylcellulose, is classifiable in subheading 3912.39.00, HTSUS, which provides for, ''[c]ellulose and its chemical derivatives, not elsewhere specified or included, in primary forms: Cellulose ethers: Other." NY D88210 noted that the rate of duty will be free pursuant to General Note 13, HTSUS.

General Note 13, HTSUS, in pertinent part, provides as follows:

"[p]harmaceutical 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."

The Pharmaceutical Appendix, HTSUS, provides a very specific list of those chemicals, identified by their CAS numbers, which are entitled to dutyfree treatment. At page 32 of the Appendix, only one methylcellulose product, CAS # 9004675, is listed. Thus, pursuant to General Note 13, HTSUS, HPMC, CAS # 9004653, which is not listed in the Appendix, is not entitled to dutyfree treatment.

Protestant challenges the liquidation and assessment of duty at 4.2% ad valorem, of its HPMC. Citing NY D88210, counsel claims that the HPMC is dutyfree, and that any decision to assess duty constitutes a modification or revocation of treatment of the merchandise as provided in the ruling. Counsel concludes that any such modification and/or revocation of treatment would be subject to the formal publication and comment procedures of 19 U.S.C. §1625.

The classification provided for the merchandise in NY D88210 is correct. However, a clerical error was made with regard to the CAS number, resulting in an incorrect statement in NY D88210, that the goods were dutyfree. Correction of a clerical error is exempted from the notice, publication, and comment procedures otherwise required for modifications and/or revocations in 19 U.S.C. § 1625(C).

The protest should be DENIED. 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 (60) 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.

Sincerely,

John Durant, Director
Commercial Rulings Division

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