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HQ 958619




April 15, 1998

CLA-2 RR:CR:GC 958619 RTR

CATEGORY: CLASSIFICATION

TARIFF NO.: 2933.40.70

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

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