HQ 083790: Classification of a pharmaceutical intermediate, ADC6

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

	HQ 083790

	April 26 1989


  CLA2 CO:R:C:G  083790  JGH

  CATEGORY:  Classifcation

  TARIFF NO.: 2922.50.5000

  John J. Galvin, Esq.
  Galvin Fox & Palmer
  425 Park Avenue
  New York, New York  100223506

  RE:  Classification of a pharmaceutical intermediate, ADC6

  Dear Mr. Galvin:

       	Your letter of January 9, 1989, concerns the classification under the Harmonized Tariff Schedules of the United States (HTSUS) of ADC6.

  FACTS:

       	ADC6 is said to be 2(alphahydroxyethyl)3amino1,5 pentanedioic acid 5methylester.  It is said to be used in the  production of the Merck antibacterial, Imipenem.

  ISSUE:

       	Whether ADC6 is classifiable under the provision of  oxygenfunction aminocompounds 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 ADC6 is an  intermediate used in the manufacture of an antibiotic,  Imipenem, since the finished antibiotic contains the ADC6  moiety, and the finished product would not have therapeutic   properties without it, ADC6 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,
  ADC6 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 cellprocesses (semi
  synthetic penicillins) or by biosynthesis (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  oxygenfunction aminocompound specifically provided for in  heading 2922, HTSUS.

  HOLDING:

       	ADC6 is a pharmaceutical intermediate and is classifiable  as an other oxygenfunction 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