CLA-2 RR:CR:GC 958619 RTR
Mr. Kevin Maher
C-Air Custom House Brokers-Forwarders, Inc.
153-66 Rockaway Boulevard
Jamaica, New York 11434
Re: Methoxy morphinan; subheadings 2933.40.70, 2933.90.79
(formerly 2933.90.80); NY 889472 revoked
Dear Mr. Maher:
This is in reference to NY Ruling 889472, which was issued
to you on behalf of Reddy-Chinmoor, Inc., on September 23, 1993,
pursuant to your request for a binding ruling on methoxy
morphinan. Samples, products of Hyderabad, India, were submitted
for our examination. Methoxy morphinan, also known as "3-methoxy
morphinan," is referred to hereinafter as "3mm."
FACTS:
The subject merchandise is an intermediate used in the
manufacture of bulk pharmaceutical chemicals. In NY 889472,
Customs concluded that 3mm was classifiable under subheading
2933.90.80, Harmonized Tariff Schedule of the United States
(HTSUS), which provides for other aromatic heterocyclic compounds
with nitrogen hetero-atom(s) only: products described in
additional U.S. note 3 to section VI.
ISSUES:
Whether 3mm, which contains an isoquinoline ring structure
specified in subheading 2933.40.70, HTSUS, is properly
classifiable in subheading 2933.90.80, HTSUS (now subheading
2933.90.79, HTSUS). Whether methoxy morphinan is classifiable as
a "drug" under the HTSUS.
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance
with the General Rules of Interpretation (GRIs). GRI 1 states in
part that for legal purposes, classification shall be determined
according to the terms of the headings and any relative section
or chapter notes, and provided the headings or notes do not
require otherwise, according to GRIs 2 through 6.
The Harmonized Commodity Description and Coding System
Explanatory Notes (ENs) constitutes the official interpretation
of the Harmonized System. While not legally binding on the
contracting parties, and therefore not dispositive, the ENs
provide a commentary on the scope of each heading of the
Harmonized System and are thus useful in ascertaining the
classification of merchandise under the System. Customs believes
the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg.
35127, 35128 (Aug. 23, 1989).
The tariff provisions under consideration are as follows:
2933 Heterocyclic compounds with nitrogen hetero-atom(s) only:
2933.40 Compounds containing a quinoline or
isoquinoline ring-system (whether or not
hydrogenated), not further fused in the
structure:
Other:
2933.40.70 Other
* * * *
2933.90 Other:
Aromatic or modified aromatic:
Other:
2933.90.79 Products described in
additional U.S. note 3 to
section VI
* * * *
In NY 889472, Customs concluded that 3mm was classifiable in
subheading 2933.90.80, HTSUS, which provides for other aromatic
heterocyclic compounds with nitrogen hetero-atoms only. This
"basket" provision provided for a general class of N-heterocyclic
organic compounds.
Although Customs continues to hold the opinion that 3mm may
be structurally characterized as an N-heterocyclic isoquinoline,
it is not classifiable in subheading 2933.90.79, HTSUS (formerly
2933.90.80, HTS), because its chemical structure contains one of
the ring systems specified in subheading 2933.40.70, HTSUS.
In Lonza, Inc. v. United States, Slip Op. 94-1335, January
31, 1995, which concerned the definition of the term "drugs"
under the HTSUS, the U.S. Court of Appeals for the Federal
Circuit ("CAFC") held that a substance is a "drug" if it
possesses "therapeutic properties and is chiefly used as an
ingredient in medicine." Further, a substance has "therapeutic
properties" if it is anesthetic or prophylactic in nature. This,
the common and commercial meaning of the term "drug", had been
accepted under the Tariff Schedules of the United States (TSUS),
the precursor to the HTSUS. In Lonza, the CAFC held that this
definition had survived the enactment of the HTSUS, and concluded
that chemical intermediates were not per se unclassifiable as
"drugs" under the HTSUS. Thus, if a substance imparts certain
characteristics to a compound which are essential to produce an
effective medicine, it is a "drug" under the HTSUS.
In our opinion, 3mm is not a "drug" within the meaning of
Lonza for two reasons. First, in its unmethylated state, it
neither possesses nor imparts therapeutic or prophylactic
properties to a compound essential to producing an effective
medicine. Without methylation, 3mm is a mere organic chemical
compound. Second, Customs believes that any therapeutic or
prophylactic properties which 3mm might have are merely
incidental to its chief use.
HOLDING:
Pursuant to GRI 1, HTSUS, 3mm is classifiable in subheading
2933.40.70, HTSUS, as a compound containing a quinoline or
isoquinoline ring system (whether or not hydrogenated), not
further fused: other: other: other.
EFFECT ON OTHER RULINGS:
NY 889472, dated September 23, 1993, is revoked. In
accordance with 19 U.S.C. 1625(C)(1), this ruling will become
effective 60 days after its publication in the Customs Bulletin.
Publication of rulings or decisions pursuant to 19 U.S.C.
1625(c)(1) does not constitute a change of practice or position
in accordance with section 177.10(c)(1), Customs Regulations (19
CFR 177.10(c)(1)).
Sincerely,
John Durant, Director
Commercial Rulings Division