CLA-2 OT:RR:CTF:TCM H011012 KSH
Area Port Director
Customs and Border Protection
1 La Puntilla Street
Room 214
San Juan, Puerto Rico 00901
RE: Internal Advice Request No. 07/012; Classification of Mixtures of Sennosides A & B Calcium Salts. Dear Port Director: This ruling is in response to a request for Internal Advice initiated by Drinker Biddle Gardner Carton, on behalf of its client, Ex-Lax, Inc. At issue is the duty free eligibility under General Note 13 of the Harmonized Tariff Schedule of the United States of sennoside A & B calcium salts. The request for internal advice is sought based on the recent amendments to the Pharmaceutical Appendix which took effect on January 1, 2007, to include among other pharmaceuticals, mixtures of sennoside A & B as well as mixtures of sennoside A & B calcium salts. Ex-lax requests confirmation of the duty free eligibility under General Note 13 of the HTSUS of mixtures of sennoside A & B calcium salts.
FACTS: The merchandise at issue is a mixture of sennoside A calcium salt and sennoside B calcium salt that is further processed and manufactured by Ex-Lax after importation to produce finished laxative products. The mixture of sennoside A & B calcium salts has been assigned the Chemical Abstract Service (CAS) registry number 62211-03-4.
ISSUE:
Whether mixtures of sennoside A & B calcium salts are eligible for duty free entry in accordance with General Note 13, HTSUS.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined 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 may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI.
The Pharmaceutical Appendix was incorporated into the HTSUS by
Presidential Proclamation 6763 of December 23, 1994. See 60 Fed. Reg. 1007 (1995). This Proclamation also added General Note 13 to the HTSUS. General Note 13, HTSUS, states the following: [W]henever 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 a 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. Products in the pharmaceutical appendix include the salts, esters and hydrates of the International Non-proprietary Name (INN) products enumerated in table 1 of the appendix that contain in their names any of the prefixes or suffixes listed in table 2 of the appendix, provided that any such salt, ester or hydrate is classifiable in the same 6-digit tariff provision as the relevant product enumerated in table 1.
Counsel does not dispute classification of the merchandise at issue in subheading 2938.90.00, HTSUS, which provides for "Glycosides, natural or reproduced by synthesis, and their salts, ethers, esters and other derivatives: Other." Rather, counsel questions the duty free eligibility under General Note 13 of the Harmonized Tariff Schedule of the United States of mixtures of sennoside A & B calcium salts in light of the recent amendments to the Pharmaceutical Appendix which took effect on January 1, 2007, to include among other pharmaceuticals, mixtures of sennoside A & B, as well as mixtures of sennoside A & B calcium salts.
In HQ 961704/961716, dated October 14, 1998, determining the status of a mixture of sennosides which were each listed separately in the Pharmaceutical Appendix, we stated that a product is not entitled to duty-free treatment unless it (in that case, the mixture) is actually listed in the Pharmaceutical Appendix. Despite having each of its component compounds included in the Appendix, the merchandise, a mixture of sennoside, was not itself listed in the Pharmaceutical Appendix. Accordingly, we stated CBP had no statutory authority to expand the Pharmaceutical Appendix.
In accordance with Presidential Proclamation 8095 of December 29, 2006, 72 Fed. Reg. 429 (2007) entitled “To Eliminate Tariffs on Certain Pharmaceuticals and Chemical Intermediates”, the Pharmaceutical Appendix was amended to include among other pharmaceuticals, mixtures of sennoside A & B, as well as mixtures of sennoside A & B calcium salts, effective January 1, 2007. Though the CAS #62211-03-4 does not appear in the Pharmaceutical Appendix, General Note 13, HTSUS, clearly provides that any product “by whatever name known” for which the symbol “K” appears in the special subcolumn for a heading or subheading shall be entitled to duty free treatment. The symbol “K” clearly appears in the special column of subheading 2938.90.0000, HTSUS. We also agree with counsel that the CAS numbers are not dispositive. See HQ W963034, dated November 2, 2000. Moreover, Table 3 of the Pharmaceutical Appendix unequivocally provides for “mixture of sennoside A & B calcium salts.” Accordingly, they are entitled to duty free treatment.
HOLDING:
The sennoside A & B calcium salts at issue are classified in subheading 2938.90.0000, HTSUS, which provides for "Glycosides, natural or reproduced by synthesis, and their salts, ethers, esters and other derivatives: Other" and if entered, or withdrawn from warehouse for consumption on or after January 1, 2007, are subject to a general column one duty rate of Free.
You are to mail this decision to the internal advice requester no later than sixty days from the date of the decision. At that time, Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division