HQ 083790
April 26 1989
CLA 2 CO:R:C:G 083790 JGH
John J. Galvin, Esq.
Galvin Fox & Palmer
425 Park Avenue
New York, New York 10022 3506
RE: Classification of a pharmaceutical intermediate, ADC 6
Dear Mr. Galvin:
Your letter of January 9, 1989, concerns the classification under the Harmonized Tariff Schedules of the United States (HTSUS) of ADC 6.
FACTS:
ADC 6 is said to be 2 (alpha hydroxyethyl) 3 amino 1,5 pentane dioic acid 5 methylester. It is said to be used in the production of the Merck antibacterial, Imipenem.
ISSUE:
Whether ADC 6 is classifiable under the provision of oxygen function amino compounds in subheading 2922.50.5000, HTSUS, or the provision for nonaromatic antibiotics in subheading 2941.90.50, HTSUS.
LAW AND ANALYSIS:
It is your contention that although ADC 6 is an intermediate used in the manufacture of an antibiotic, Imipenem, since the finished antibiotic contains the ADC 6 moiety, and the finished product would not have therapeutic properties without it, ADC 6 should be classified as an antibiotic. You note that under the Tariff Schedules of the United States (TSUS) it was classified as a benzenoid derived antibiotic. In the technical information which you supplied,
ADC 6 is said to form the seat of antibacterial activity of Imipenem, and while not antibacterial itself," it provides the basis of the antibacterial activity."
2
In the explanatory notes to heading 2941, antibiotics are defined as substances secreted by living microorganisms which have the effect of killing other microorganisms or inhibiting
their growth. Also included in the heading are chemically modified antibiotics which are said to be prepared by isolating ingredients produced by natural growth by the organism and then
modifying the structure by chemical reaction or by adding side chain precursors to the growth medium so that desired groups are incorporated into the molecule by cell processes (semi
synthetic penicillins) or by bio synthesis (pencillins from selected amino acids). Natural antibiotics reproduced by synthesis (e.g. chloramphenicol) are classified in this
heading, as are certain synthetic products closely related to natural biotics and used as such (e.g. pencillins from selected amino acids).
Heading 2941 provides several examples of the antibacterials or antibiotics which are classified under the heading: Ampicillin, penicillin, streptomycin, tetracycline,
chloramphenicol and erythromycin. All of these are finished antibacterials or antibiotics, and not intermediates. Under the TSUS, the definition of drugs included not only the
finished product but also the active ingredients. However, under the HTSUS there is no indication that intermediates are to be classified as the finished products. Thus, resort does
not have to be made to legal note 3 of chapter 29 or to the doctrine of relative specificity for classification, since General Rule of Interpretation 1 is sufficient to identify the
product for classification in the HTSUS. The chemical is an oxygen function amino compound specifically provided for in heading 2922, HTSUS.
HOLDING:
ADC 6 is a pharmaceutical intermediate and is classifiable as an other oxygen function amino compound in subheading 2922.50.5000, HTSUS. The rate of duty is 7.9 percent ad
valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division