Request for Reconsideration of HQ H191901; Classification of Microwell Plates

HQ H240721 December 3, 2014 CLA–2 OT:RR:CTF:TCM H240721 TNA CATEGORY: Classification TARIFF NO.: 2934.99.39 Center for Excellence and Expertise (CEE) One Penn Plaza, 10th Floor New York, NY 10119 Attn: Leon Hayward, Director RE: Request for Reconsideration of HQ H191901; Classification of Microwell Plates Dear Mr. Hayward: This is in reference to your request for reconsideration of Headquarters Ruling Letter (“HQ”) H191901, dated January 10, 2013, forwarded from the Center for Excellence and Expertise (“CEE”) on behalf of Astra-Zeneca Pharmaceuticals, LP (“Astra-Zeneca”). HQ H191901 was a Request for Internal Advice initiated by Astra Zeneca regarding the classification of chemical libraries in the form of microwell plates under the Harmonized Tariff Schedule of the United States (HTSUS). We have reviewed HQ H191901 and found it to be correct. For the reasons set forth below, we hereby affirm HQ H191901. FACTS: The merchandise at issue consists of microwell plates, which are plastic plates containing anywhere from 96 to 384 individual wells. Each well holds 12.5 microliters, but generally only contains 500 nanoliters of a given chemical. The chemicals themselves are dispersed in the chemical dimethyl sulfoxide (DMSO). The chemicals imported in the microwell plates are intended for use in pharmaceutical research and drug development. Specifically, the chemicals are used for enzyme and whole cell testing. The testing is done to screen the imported chemicals for specific activity in the presence of a given reagent or cell. An automated process takes up the compounds and dispenses them into other containers which hold the reagent or cell necessary for a specific assay. The purpose of these tests is to determine if a reaction occurs. LAW AND ANALYSIS: The subject merchandise is a microwell plate- that is, a plastic container that holds 96 different chemicals. Generally, plastic products are provided for under Chapter 39, HTSUS, and chemical compounds are classified under the various headings of Chapters 28, 29, or 38, HTSUS, depending on their individual chemical structures. See Note 1 to Chapter 28, HTSUS; Note 1 to Chapter 29, HTSUS; General EN to Chapter 38; Note 1 to Chapter 39, HTSUS; General EN to Chapter 39, HTSUS. As a result, no single heading describes the product in its entirety, and the subject merchandise cannot be classified under GRI 1. The subject merchandise is described as a composite good of GRI 3(b). Thus, in order to determine the subject merchandise’s essential character, we examine the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the article. There can be little dispute that the chemicals of the subject microwell plates constitute its essential character. They provide the majority of the value and quantity of the subject merchandise, as well as the product’s reason for existence- it is the chemicals that provide the chemical reaction that the importer needs. The container in which they are housed could be made of any material. As a result, we classify the subject microwell plates according to the chemicals they contain. In requesting this reconsideration, Astra Zeneca argues that many of the facts stated in HQ H191901 are incorrect. For example, whereas the facts of HQ H191901 stated that the chemicals at issue were either in solid form dispersed in water, or dispersed in DMSO, Astra Zeneca now argues that solid compounds are not shipped in the subject well plates. Rather, the company states that solid compounds are shipped separately in different sized vials. Furthermore, Astra Zeneca submits that each well within the subject microwell plate contains a compound (generally a heterocyclic hydrocarbon) that is dissolved in DMSO rather than in water. Most importantly, Astra Zeneca submits that, contrary to the facts and analysis of HQ H191901, the DMSO is not used as a stabilizer. To the contrary, the company states that it is a solvent that turns the chemical compound into a liquid. Astra Zeneca further argues that the DMSO is a chemical compound on its own, and that because it is mixed with the heterocyclic hydrocarbons in the subject microwell plates, these chemicals are no longer separately defined chemical compounds within the meaning of Note 1(a) to Chapter 29, HTSUS. In addition, Astra Zeneca states that the DMSO is not being used as a stabilizer, and therefore cannot remain in Chapter 29, HTSUS by virtue of Note 1(f) to Chapter 29. To the contrary, Astra Zeneca states that the DMSO is purposely added to the chemicals to turn them into liquid and increase their solubility and their usability as a medium. As a result, Astra Zeneca argues that the DMSO renders these chemicals suitable for a specific use- that of high throughput screening and chemical and biological assay tests. Therefore, Astra Zeneca argues that the subject merchandise is precluded from classification in Chapter 29, HTSUS, and is more properly classified as a chemical mixture of heading 3824, HTSUS. After conferring with CBP’s laboratory, we note that it has been the laboratory’s experience that microwell plates of this nature have consistently used DMSO as a solvent and have been imported with solvent in each well. Contrary to Astra Zenec’s claims, solid material has generally not been shipped directly in a microwell plate, because of the high risk of the solid’s loss. DMSO is the solvent of choice for this type of merchandise primarily because it works very well as a solvent for most pharmaceutically relevant compound types. Thus, DMSO is a common solvent used to solubilize the compounds, standardize the compound concentrations, and for convenience in terms of handling, both for production and in testing. Note 1(e) to Chapter 29, HTSUS, states that separately defined chemical compounds dissolved in other solvents provided that the solution constitutes a normal and necessary method of putting up these products adopted solely for reasons of safety or for transport and that the solvent does not render the product particularly suitable for specific use rather than for general use remain classified in Chapter 29, HTSUS. See Note 1(e) to Chapter 29, HTSUS. The subject merchandise consists of chemicals dissolved in DMSO- a solvent. As a result, it is classified in Chapter 29, HTSUS. Thus, we adhere to the reasoning and conclusion of HQ H191901. The subject merchandise remains classified in heading 2934, HTSUS. HOLDING: By application of GRI 3(b), the subject microwell plates are classified under heading 2934, HTSUS. They are specifically provided for under subheading 2934.99.39, HTSUS, which provides for “Nucleic acids and their salts, whether or not chemically defined; other heterocyclic compounds: Other: Other: Aromatic or modified aromatic: Other: Other: Products described in additional U.S. note 3 to section VI.” The column one, general rate of duty is 6.5% ad valorem. Duty rates are provided for the internal advice applicant’s convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov. Sincerely, Myles B. Harmon, Director Commercial Trade Facilitation Division