CLA-2 OT:RR:CTF:TCM H048948 CkG
Ms. Inge Forstenzer Ren-Pharm International, Ltd. 350 Jericho Turnpike, Suite 204 Jericho, NY 11753
Re: Revocation of NY K89730; classification of Atovaquone
Dear Ms. Forstenzer,
This is in reference to New York Ruling Letter (NY) K89730, issued by the Customs and Border Protection (CBP) National Commodity Specialist Division on September 27, 2004, regarding the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of the drug Atovaquone. We have reconsidered this decision, and for the reasons set forth below, have determined that classification of Atovaquone in subheading 2914.69.20, HTSUS, as an “other” quinone, was incorrect.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice proposing to revoke NY K89730 was published on March 31, 10, 2010, in Volume 44, Number 14, of the Customs Bulletin. CBP received no comments in response to the notice.
FACTS:
Atovaquone, is indicated for the prevention of Pneumocystis carinii pneumonia in patients who are intolerant to trimethoprim-sulfamethoxazole. It is also indicated, in combination with proguanil hydrochloride, for the prevention of P. falciparum malaria. It is imported in bulk form.
ISSUE:
Whether Atovaquone is more specifically described as a quinone of subheading 2914.69, HTSUS, or a halogenated, aromatic compound of subheading 2914.70, HTSUS.
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the remaining GRIs 2 through 6. GRI 6, HTSUS, requires that the GRI's be applied at the subheading level on the understanding that only subheadings at the same level are comparable. The GRI's apply in the same manner when comparing subheadings within a heading.
The HTSUS provisions under consideration are as follows:
2914: Ketones and quinones, whether or not with other oxygen function, and their halogenated, sulfonated, nitrated, or nitrosated derivatives:
Quinones:
2914.69: Other:
2914.69.20: Drugs….
2914.70: Halogenated, sulfonated, nitrated or nitrosated derivatives:
Aromatic:
2914.70.40: Other….
* * * * *
HTSUS Pharmaceutical Annex
This table enumerates products described by International Non-proprietary Names (INN) which shall be entered free of duty under general note 13 to the tariff schedule…
ATOVAQUONE 95233-18-4
* * * * *
There is not dispute that Atavaquone is classifiable at GRI 1 in heading 2914, HTSUS, as a halogenated quinone with an oxygen function. Atavaquone’s chemical formula is C22H19O3Cl. A diagram of its chemical structure is included below. A quinone consists of a hydrocarbon ring with two double-bonded oxygen atoms substituted for two hydrogen atoms, as seen below. The compound is halogenated due to the further substitution of a hydrogen atom with a Chlorine atom. The compound is
thus properly classifiable in heading 2914, HTSUS, as a halogenated quinone derivative. The issue arises at the six-digit subheading level. Atavaquone is also an aromatic compound, due to the presence of a six-membered carbon ring with three double bonds. It is thus classifiable either as an “other” quinone of subheading 2914.69, HTSUS, or as a halogenated, aromatic compound of subheading 2914.70, HTSUS. We find the latter to be a more specific description of the product at hand.
HOLDING:
By application of GRI 3(a) and GRI 6, Atavaquone is classified in subheading
2914.70.40, which provides for “Ketones and quinones, whether or not with other
oxygen function, and their halogenated, sulfonated, nitrated, or nitrosated derivatives: Halogenated, sulfonated, nitrated or nitrosated derivatives: Aromatic: Other.”
Pursuant to GN 13 of the HTSUS, Atavaquone is entered free of duty.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N044081, dated November 21, 2008, is hereby modified with respect to the classification of donepezil hydrochloride.
In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director,
Commercial and Trade Facilitation Division