CLA-2 OT:RR:CTF:TCM H048377 CkG
Port Director
Port of Boston
U.S. Customs and Border Protection
10 Causeway Street, Room 603
Boston, MA 02222
Re: Application for Further Review of Protest # 0401-08-100188; classification of Steritest® Filtration Devices
Dear Port Director:
This is in response to your correspondence forwarding Application for Further Review of Protest # 0401-08-100188, filed on behalf of Millipore Corporation (Protestant) on November 17, 2008, contesting U.S. Customs and Border Protection’s (CBP) classification of certain Steritest® filtration devices in heading 3926 of the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
According to the protestant’s submissions, the devices at issue are “specialized membrane filtration systems designed for testing the sterility of pharmaceutical substances, such as ingestable medications.” The Millipore Steritest® line utilizes the membrane filtration method, a completely closed system whereby a peristaltic pump directly transfers the substance being tested from its container via needles and adapters, through the enclosed tubing. The substance is then delivered into two sealed canisters. Filtration membranes are located at the bottom of the sealed canisters. The liquid is filtered out through pores of 0.45 microns in diameter, allowing any contaminants to remain on top of the membrane inside the sealed Steritest® canister. Drainage channels in the base of the canisters ensure proper rinsing of the filter membranes.
This Protest covers nine different models of Steritest® filtration devices: TZHALA210, TZHALV210, TZHASV210, TZHAPC210, TZHASY210, TZHVAB210, TZHVSL210, TZHVDV210, and TZHVSV210. None of these devices were imported with a pump. Descriptions are provided for five models, as follows:
The TZHALA210 consists of 2 canisters connected to a 75 mm stainless steel adapter needle via a double lumen PVC tubing. A separate Millex vent with a 50 mm stainless steel single needle is also provided and includes a plastic holder and a Millex vent with a .22µm hydrophobic membrane. This model is for use with liquids in ampoules and collapsible bags.
The TZHALV210 consists of 2 canisters connected to a 38 mm stainless steel vented double needle via a double lumen PVC tubing with four clamps. This model is used for liquids in large vials.
The TZHASV210 and TZHAPC210 consist of two canisters connected to a small diameter double needle via double lumen PVC tubing. The TZHASV210 is used for small volume parenterals in vials, and the TZHAPC210 is for use with liquids in plastic containers.
The TZHASY210 consists of two canisters connected to a syringe adapter via double lumen PVC tubing. The syringe adapter is connected to a two-way needle via a versilic tube. The two-way needle has an integral vent to draw air into a container as liquid is withdrawn. The double lumen PVC tubing has four pre-installed clamps, one on each side of each tube.
The merchandise was entered under heading 8421, HTSUS, between October 14, 2007, and January 7, 2008, at the Port of Logan Airport. CBP liquidated the merchandise on September 12, and October 3, 2008, under heading 3926, HTSUS, which provides for “Other articles of plastic and articles of other materials of headings 3901 to 3914.”
ISSUE:
Whether the Steritest® devices are classified in heading 8421, HTSUS, as filtering or purifying apparatus, or in heading 3926, HTSUS, as “other” articles of plastic.
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a) (2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)).
Further Review of Protest No. 0401-08-100188 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 because the decision against which the protest was filed is alleged to involve specific factual and legal questions that have not been the subject of a Headquarters ruling or court decision. Specifically, the Protestant states that the AFR contains information that the Port did not have at the time that it reclassified the merchandise in question.
Merchandise is classifiable under the HTSUS in accordance with the General
Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined
according to the terms of the headings and any relative section or chapter notes and,
provided such headings or notes do not otherwise require, according to the remaining
GRIs 2 through 6.
The 2008 HTSUS provisions under consideration are as follows:
3926 Other articles of plastic and articles of other materials of headings 3901 to 3914:
3926.90 Other:
3926.90.99 Other….
* * * * *
8421 Centrifuges, including centrifugal dryers; filtering or purifying machinery and apparatus, for liquids or gases; parts thereof:
Filtering or purifying machinery and apparatus for liquids:
8421.29.00 Other….
* * * * *
The Harmonized Commodity Description and Coding System Explanatory Notes
(“ENs”) constitute the official interpretation of the HTSUS. While not legally binding or
dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS
and are generally indicative of the proper interpretation of these headings at the
international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The EN to heading 3926, HTSUS, provides as follows:
This heading covers articles not elsewhere specified or included, of plastics (as defined in Note 1 to the Chapter) or of other materials of headings 39.01 to 39.14.
The General ENs to Section XVI, HTSUS, in which Chapter 84 is located,
provides, in pertinent part, as follows:
(B) In general, the goods of this Section may be of any material. In the great
majority of cases they are of base metal, but the Section also covers certain machinery of other materials (e.g., pumps wholly of plastics) and parts of plastics, of wood, precious metals, etc.
The ENs to Heading 8421, HTSUS, provide, in pertinent part:
(II) FILTERING AND PURIFYING MACHINERY AND
APPARATUS FOR LIQUIDS AND GASES
Filtering and purifying machinery, etc., for liquids, including water
softeners.
The liquid filters of this group separate solid, fatty, colloidal, etc., particles from a liquid, for example, by passing it through a sheet, membrane or mass of porous material (e.g., cloth, felt, wire cloth, skin, stoneware, porcelain, kieselguhr, sintered metallic powders, asbestos, paper pulp, cellulose, charcoal, animal black, sand)….The heading covers liquid filters whether of the gravity, suction (or vacuum) or pressure types.
* * * * *
In Airflow Technology, Inc. v. United States, 524 F.3d 1287, 1291-1292 (Fed. Cir.
Apr. 28, 2008) (concerning whether a particular product was a straining cloth of subheading 5911.40.00, HTSUS), the Court of Appeals for the Federal Circuit (CAFC) adopted the definition of the term “filter” found in the 1986 edition of Webster’s Third New International Dictionary:
The dictionary defines the verb "filter" in relevant part as "to subject to the action of a filter: pass (a liquid or gas) through a filter for the purpose of purifying or separating or both.”…The noun filter is defined as "a porous article or mass (as of cloth, paper, or sand) that serves as a medium for separating from a liquid or gas passed through it matter held in suspension or dissolved impurities or coloring matter."
Applying this definition, we find that the instant articles conform to this description of filters; the porous membranes at the bottom of the canisters separate the liquid being tested from any solid contaminants dissolved or suspended within the liquid. The Steritest® devices therefore meet the terms of heading 8421, HTSUS, at GRI 1. Filters of this heading may be of any material. See General EN(B), Sec. XVI. Moreover, because the subject articles are classified in heading 8421, they are precluded from classification in heading 3926, HTSUS, by the terms of that heading. See EN 39.26. See also HQ 964174, dated July 10, 2000, in which a “Y” strainer made of stainless steel was classified by CBP as a filtration device under heading 8421, HTSUS. CBP rejected classification of the Y strainer in heading 7326 (“other articles of iron or steel”), because the article was specifically provided for in heading 8421. See also HQ H040033, dated November 20, 2008, in which CBP classified a plastic water bottle with an ultraviolet (“UVc”) light insert in heading 8421, due to its purifying function.
As the text of heading 8421, HTSUS, describes the product in its entirety, your arguments concerning GRI 3 will not be addressed.
HOLDING:
By application of GRI 1, the Steritest® filtration devices, models TZHALA210, TZHALV210, TZHASV210, TZHAPC210, TZHASY210, TZHVAB210, TZHVSL210, TZHVDV210, and TZHVSV210, are classified in heading 8421, HTSUS. They are specifically provided for in subheading 8421.29.00, HTSUS, which provides for “filtering or purifying machinery and apparatus, for liquids or gases;…: Filtering or purifying machinery and apparatus for liquids: Other.” The 2008 column one, general rate of duty is Free.
Since reclassification will result in a lower duty rate, you are instructed to allow the protest in full. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision.
Sixty days from the date of the decision, Regulations and Rulings, Office of International Trade, will make the decision available to CBP personnel and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director,
Commercial and Trade Facilitation Division