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October 24, 1995

HQ 956444


CLA-2 R:C:F 956444 ASM

CATEGORY: CLASSIFICATION

TARIFF NO.: 2933.40.2600

Mr. Alan R. Klestadt
Mr. David M. Murphy
Grunfeld, Desiderio, Lebowitz & Silverman 245 Park Avenue
New York, NY 10167-0002

RE: Request for tariff classification of 3-Methoxy morphinan hydrochloride
(CAS 1087-69-0)

Dear Messrs. Klestadt and Murphy:

This letter is in response to your request for a ruling regarding the classification of 3-methoxymorphinan hydrochloride (CAS 1087-69-0), which is produced in India.

FACTS:

On behalf of your client, it is asserted that "3-Methoxymorphinan HCL" has a single commercial use as the immediate chemical precursor to dextromethorphan (CAS 6700-34-1), an antitussive drug. It is further stated that 3-methoxymorphinan HCL, is a heterocyclic compound which is composed of one or more rings containing carbo-atoms and atoms of other elements such as nitrogen, oxygen, or sulfur.

You further assert that 3-methoxymorphinan is more specifically a synthetic aromatic optically active compound of alkaloid structure, which contains an isoquinoline ring, fused to the fourth ring or aromatic portion of the molecule. According to your submission, the coumpound is synthetically derived from para-methoxphenylacetic acid and 2-(1-cyclohexenyl) ethylamine. After importation into the United States, the 3-methoxymorphinan is subjected to neutralization methylation, acidification and crystallization to form dextromethorphan. Finally, you assert that the therapeutic properties of the dextromethorphan are derived from 3-methoxymorphinan, which render it suitable for medicinal use.

You have stated that 3-methoxymorphinan HCL is properly classified under subheading 2939.10.2000, Harmonized Tariff Schedule of the United States (HTSUSA), as a synthetic alkalolid dutiable at 7 percent ad valorem (currently this provision is duty free under the general column one rate). In the alternative, you recommend that the compound be classified as a "drug" under subheading 2933.90.7500, HTSUSA where it would be dutiable at the rate of 6.9 percent ad valorem (currently this provision is dutiable under the general column one rate at 6.8 percent ad valorem).

ISSUE:

What is the correct tariff classification for 3-methoxymorphinan hydrochloride (CAS 1087-69-0)?

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI's). The systematic detail of the harmonized system is such that virtually all goods are classified by application of GRI 1, that is, 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's may then be applied. The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI's.

It has been determined by the Customs Laboratory, that 3-methoxymorphinan hydrochloride does not contain an oxygenated bridge in its ring structure (which is a main structural feature of Morphine and Thebaine and their derivatives). As such, it cannot be considered to be an alkaloid or an alkaloid derivative. Thus, the product cannot be classified as an alkaloid within subheading 2939.10.2000, HTSUSA.

In the case of Lonza, Inc. v. United States, Slip Op. 94-1335, January 31, 1995, it was held that, a "drug" under the HTSUSA, is that which possesses "therapeutic properties and is chiefly used as an ingredient in medicine." The product, 3MM, is used as an "intermediate" reactant to chemically manufacture dextromethorphan which is therapeutic and is administered as a drug. Thus, in order to be classified as a "drug" under Chapter 29, 3MM must possess
(anesthetic, prophylactic) therapeutic properties; and, be chiefly used as an ingredient in medicines. In effect, it must impart certain properties to other substances which are necessary to produce an effective medicine. The term "therapeutic use" indicates that a substance by itself, is in a condition ready for use as a curative. Based on the Lonza case, 3MM clearly qualifies as a drug because it is chiefly used as an ingredient in medicine.

While this office concurs that 3MM is a heterocyclic compound with nitrogen hetero-atom(s) containing an isoquinoline ring, we disagree with the proposed alternative classification within 2933.90.7500, HTSUSA. It is our position that 3MM contains a "bridged" but not further "fused," isoquinoline ring and should therefore be classified within subheading 2933.40, HTSUSA.

The ENs to subheading 2933.40, HTSUSA, state that this subheading shall include, "Quinoline, isoquinoline, and their derivatives, 2 ring systems comprising a benzene ring fused to a pyridine ring." The functional group features of the 3MM molecule are the methoxy group and the nitrogen heterocyclic ring,and a quinoline ring. Thus, 3MM is more specifically provided for within subheading 2933.40.2600, HTSUSA, which includes "Compounds containing a quinoline or isoquinoline ring-system (whether or not hydrogenated), not further fused: Other: Drugs: Other."

HOLDING:

The product identified as, 3-Methoxymorphinan hydrochloride, is properly classifiable within subheading 2933.40.2600, HTSUSA, which provides for "Compounds containing a quinoline or isoquinoline ring-system (whether or not hydrogenated), not further fused: Other: Drugs: Other." The general column one rate of duty is 7.8 percent ad valorem.

Sincerely,

John Durant, Director

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