CLA-2 CO:R:C:F 950133 JGH
District Director of Customs
One Virginia Ave
Wilmington, North Carolina 28401
RE: Decision on Application for Further Review of Protest No.
1503-90-000037, on the Classification of Thymidine, under the
Harmonized Tariff Schedule of the United States (HTSUS), a product of
Germany.
Dear Sir:
This protest involves the classification of the chemical thymidine,
entered in 1989-1990 by Burroughs-Wellcome Co.
FACTS:
Thymidine was originally entered under the provision for other gtLms,
gum-resins in subheading 1301.90.90, HTSUS. Customs changed the
classification to that for other heterocyclic compounds in subheading
2934.90.50, HTSUS. In a laboratory report it was described as a white,
fluffy powder; an organic, heterocyclic compound having a chemical name of
l-(2-Deoxy-B-DRibofuranosyl)-5- methyluracil.
Thymidine is described by the protestant as an intermediate chemical used
in the production of zidovudine, an anti-HIV drug. It is claimed that it
is derived from thymine, is a glycoside and that it is a constituent of
DNA (deoxyribonucleic acid). It is further asserted that it is apparent by
its chemical structure, that thymidine is a combination of a vegetable
alkaloid (thymine) and a glycose (2-deoxyribose). In view of its
structure, on the Protest it is contended that the thymidine is
classifiable as a natural derivative of vegetable alkaloids, in subheading
2939.90.10, HTSUS, or as a derivative of glycoside in subheading
2938.90.00, HTSUS.
-- 2 --
ISSUE:
Whether thymidine is classifiable under the provision for other
natural derivatives of vegetable alkaloids in subheading 2939.90.10,
HTSUS, other glycosides, natural or reproduced by synthesis, in
subheading 2938.90.00,HTSUS, or other heterocyclic compounds in
subheading 2934.90.50, HTSUS.
LAW AND ANALYSIS:
The importer claims that since thymidine structurally appears
to be a combination of a vegetable alkaloid (thymine) and a glycose
(2-deoxyribose) it should be considered a derivative of the
vegetable alkaloid thymine and, therefore, classifiable in
subheading 2939.90.10, HTSUS. We note, however, that the importer
states that the thymidine nucleoside is synthesized by the cleavage
of DNA structures followed by a significant number of chemical
synthesis steps. The finished nucleoside, though containing
chemical structure which is found in alkaloids, consists of a
significant amount of chemical synthesis steps. The finished
nucleoside, though containing chemical structure which is found in
alkaloids, consists of a significant amount of additional structure
which would make the compound different than "a simple derivatized
alkaloid." For this reason and the fact that thymidine is too far
removed from a naturally occurring compound to be considered a
natural derivative and, in addition, the chemical structure of
thymidine is clearly not similar enough to the natural product from
which it is obtained, we cannot consider the product to be a natural
product from which it is obtained; nor can we consider it to be a
natural derivative of a vegetable alkaloid.
To be classified as a derivative of a glycoside in heading
2938, the thymidine must be either naturally occurring or
synthesized in a manner so that its chemical structure is identical
to the structure of a naturally occurring glycoside. In the
structure of thymidine, the original base and sugar are not joined
by a glycosidic linkage through an oxygen atom as are all
glycosides. As mentioned, thymidine is considered a nucleoside,
or more specifically a n-glycoside or a glycoside having a nitrogen
atom glycosidial bond. In addition technical literature supplied
establishes that thymidine is found in its free, unbound form in
different types of plants and animal organisms. Since the
Explanatory Note (9) to heading 2938 lists "sinigrin", an
s-glycoside having a sulfur atom glycosidal bond, as a glycoside
classifiable in heading 2938, it is concluded that the intent of
the heading is to include an n-glycoside like thymidine.
-- 3 --
HOLDING:
Thymidine is classifiable as a derivative of glycoside in
subheading 2938.90.00, HTSUS.
You are directed to allow the protest in full.
A copy of this decision should be furnished the protestant
with the Form 19 Notice of Action.
Sincerely,
Director
Commercial Rulings Division