CLA-2 RR:CR:GC 963040 MGM
Mr. Bennie Holzapfel
George Uhe Co., Inc.
12 Rte. 7, N.
Paramus, NJ 07653
RE: Thymidine; Revocation of HQ 955128
Dear Mr. Holzapfel:
This office has determined that Headquarters Ruling Letter (HQ) 955128, issued to you on December 16, 1994, concerning the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of thymidine, is in error. In HQ 955128 Customs ruled that thymidine was classified in subheading 2938.90.00, HTSUS, the provision for glycosides other than rutoside. Upon review of this ruling, Customs has discovered that this product should be classified in subheading 2934.90.90, HTSUS, the provision for “nucleic acids and their salts; other heterocyclic compounds: other: other: other: other. Therefore, this ruling revokes HQ 955128.
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 (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), notice of the proposed revocation of NY 890709 was published on September 8, 1999, in the CUSTOMS BULLETIN, Volume 33, Number 35/36. No comments were received in response to that notice.
FACTS:
Thymidine (C10H14N2O5; CAS No. 50-89-5) consists of thymine (a pyrimidine derivative) linked to D-deoxyribose. It is a constituent of deoxyribonucleic acid (DNA).
Presidential Proclamation 7207, dated July 1, 1999, added thymidine to Table 3 of the Pharmaceutical Appendix to the HTSUS. See 64 FR 36549. This may enable thymidine to qualify for duty-free entry pursuant to General Note 13, HTSUS.
ISSUE:
Whether thymidine is classified under the provision for glycosides, or the provision for nucleic acids and other heterocyclic compounds.
LAW AND ANALYSIS:
Merchandise imported into the United States 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 which 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 for all purposes.
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 their appropriate 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 understanding the language of 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. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
This matter is governed primarily by GRI 1, in that the choice in classification is between two headings. Heading 2938, HTSUS, provides for “Glycosides, natural or reproduced by synthesis, and their salts, ethers, esters and other derivatives” while heading 2934, HTSUS, provides for “Nucleic acids and their salts; other heterocyclic compounds.”
EN 29.38 states, in reference to heading 2938, HTSUS, “this heading also excludes: (1) nucleosides and nucleotides (heading 29.34).” A nucleoside is a compound “containing a purine or pyrimidine base linked to either D-ribose, forming ribose, or D-deoxyribose,” Hawley, Condensed Chemical Dictionary, 10th edition. “A purine or pyrimidine base in glycosidic linkage with the sugar forms a nucleoside (e.g. adenosine, thymidine, q.v.).” The Merck Index, 12th edition, at 1156. Both of these definitions describe thymidine, which consists of thymine (a pyrimidine derivative) linked to D-deoxyribose. Thus, thymidine is a nucleoside and should, according to EN 29.38, be classified in heading 2934, HTSUS, rather than heading 2938, HTSUS.
Within heading 2934, HTSUS, thymidine is best classified in the six-digit subheading 2934.90, the residual subheading, as thymidine contains neither an unfused thiazole ring, a benzothiazole ring-system, nor a phenothiazine ring-system. At the ten-digit level, thymidine is properly classified in subheading 2934.90.9000, HTSUS, because it is not an aromatic or modified aromatic compound, is not a drug, nor is it listed in the eo nomine provisions of subheading 2934.90.7000, HTSUS.
This is consistent with the classification of uridine in subheading 2934.90.9000, HTSUS, in NY A84837, dated June 25 1996. Uridine is similar to thymidine, differing only in that uridine lacks a methyl group on its pyrimidine base and has a sugar group of ribose rather than deoxyribose. Uridine is described as a “nucleoside” by the Merck Index.
HOLDING:
Thymidine is classified in subheading 2934.90.9000, HTSUS.
HQ 955128 is revoked. 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 (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), notice of the proposed revocation of NY 890709 was published on September 8, 1999, in the CUSTOMS BULLETIN, Volume 33, Number 35/36. No comments were received in response to that notice.
Sincerely,
John Durant, Director
Commercial Rulings Division