CLA-2 OT:RR:CTF:EMAIN H316154 PF
Port Director, Port of Dallas/Fort Worth
U.S. Customs and Border Protection 7501 Esters Blvd., Suite 160
Irving, TX 75063
Attn: Cinthia Romero, Import Specialist
Re: Protest and Application for Further Review No: 3195-19-100475; Classification and applicability of Section 301 trade remedy to patch-clamp amplifiers from China
Dear Port Director:
The following is our decision as to Protest and Application for Further Review No. 3195-19-100475, which was filed on November 25, 2019 on behalf of Molecular Devices, LLC (“protestant”). The protest pertains CBP’s determination on the tariff classification of the subject merchandise as well as the applicability of the exclusion annotated under Chapter 99 U.S. Note 20(x)(90) of the Harmonized Tariff Schedule of the United States (“HTSUS”).
The subject merchandise was entered by protestant between July 24, 2018 and December 28, 2018. Between June 7, 2019 and November 22, 2019, CBP liquidated the entries under subheading 9030.33.3800, HTSUS Annotated and 9903.88.01, HTSUS.” On November 25, 2019, protestant filed a protest and AFR alleging that CBP erred in finding that the exclusion annotated under Chapter 99 U.S. Note 20(x)(90) of the HTSUS, did not apply to its merchandise.
FACTS:
The merchandise at issue in this protest are described as programmable DC electronic load devices, also referred to as patch-clamp amplifiers. The product models in question include the Axopatch 200B Microelectrode Amplifier, the Multiclamp 700B Microelectrode Amplifier, and the Axoclamp 900A Microelectrode Amplifier (“patch-clamp amplifiers”). The data sheets for the subject merchandise, provided by protestant, show that the primary function of these devices is to (a) present a programmed DC constant current (current clamping mode) or constant voltage (voltage clamping mode) to a device under test, and (b) provide a means to monitor (e.g., with a separate oscilloscope or recording device) the response of the device under test. None of the devices incorporate a recording device. The products can satisfy a wide range of test requirements. They can be programmed to present a constant current or constant voltage to a device under test. The device under test can be anything that requires a load within the specified range of the hardware. The patch-clamp amplifiers weigh between 4.3kg to 5.1kg.
At the time of entry, these products were subject to Section 301 duties of 25 percent ad valorem, as they were classified under subheading 9030.33.38, HTSUS and had a country of origin of China. See Notice of Modification of Section 301 Action: China’s Acts, Policies, and Practices Related to Technology Transfer, Intellectual Property, and Innovation, 83 Fed. Reg. 28710 (June 10, 2018). However, the U.S. Trade Representative granted an exclusion from the Section 301 duties for “Programmable DC electronic load instruments capable of presenting a constant load to a device, such as constant resistance, constant voltage, constant current, or constant power, weighing more than 4 kg but less than 8kg (described in statistical reporting number 9030.33.3800).” See Notice of Product Exclusions 84 Fed. Reg. 52569 (Oct. 2, 2019). In your request, you suggest that the subject merchandise satisfies the exclusion provision for programmable DC electronic load instruments, as published under the Federal Register Annex enumeration (90), is specifically provided for under Section XXII, Chapter 99, Subchapter III U.S. Note 20(x), HTSUS, as follows:
(x) The U.S. Trade Representative determined to establish a process by which particular products classified in heading 9903.88.01 and provided for in U.S. notes 20(a) and 20(b) to this subchapter could be excluded from the additional duties imposed by heading 9903.88.01. See 83 Fed. Reg. 28710 (June 20, 2018) and 83 Fed. Reg. 32181 (July 11, 2018). Pursuant to the product exclusion process, the U.S. Trade Representative has determined that the additional duties provided for in heading 9903.88.01 shall not apply to the following particular products, which are provided for in the enumerated statistical reporting numbers:
(90) Programmable DC electronic load instruments capable of presenting a constant load to a device, such as constant resistance, constant voltage, constant current, or constant power, weighing more than 4 kg but less than 8 kg (described in statistical reporting number 9030.33.3800).
The protestant claims that it is eligible to claim the secondary tariff number of subheading 9903.88.19, HTSUS, by virtue of falling under the scope of the above exclusion.
ISSUE:
Whether the patch-clamp amplifiers satisfy an exclusion provision pertaining to products classified under subheading 9030.33.3800, HTSUSA and are eligible to claim the secondary tariff number of subheading 9903.88.19, HTSUS.
LAW AND ANALYSIS:
Initially, we note that the matters protested are protestable under 19 U.S.C. §1514(a) (2) as decisions on classification. The protest was timely filed, within 180 days of liquidation of the first entry. (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 Protests No. 3195-19-100475 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of CBP or his designee or by the Customs courts.
There is no dispute as to the classification of the patch-clamp amplifiers, which are classified pursuant to General Rule of Interpretation (“GRI”) 1, in subheading 9030.33.3800, HTSUSA, which provides for “Oscilloscopes, spectrum analyzers and other instruments and apparatus for measuring or checking electrical quantities, excluding meters of heading 9028; instruments and apparatus for measuring or detecting alpha, beta, gamma, X-ray, cosmic or other ionizing radiations; parts and accessories thereof: Other instruments and apparatus, for measuring or checking voltage, current, resistance or power: Other, without a recording device: Other.”
The issue in this case is whether the patch-clamp amplifiers are accurately described by the terms of U.S. Note 20(x)(90) and afforded the exclusion under 9903.88.19, HTSUS. The subject patch-clamp amplifiers are directly used in the process of measuring or checking voltage or current. When a constant voltage is applied, the patch-clamp amplifiers measure the resulting current of the measured item. When a constant current is applied, the patch-clamp amplifiers measure the resulting voltage of that item. The products can satisfy a wide range of test requirements. They can be programmed to present a constant current or constant voltage to a device under test. The device under test can be anything that requires a load within the specified range of the hardware. The patch-clamp amplifiers weigh between 4.3kg to 5.1kg.
Based on the specifications provided by protestant, the subject patch-clamp amplifiers are described by statistical reporting number 9030.33.3800, HTSUSA and meet the following exclusion terms: “Programmable DC electronic load instruments capable of presenting a constant load to a device, such as constant resistance, constant voltage, constant current, or constant power, weighing more than 4 kg but less than 8kg (described in statistical reporting number 9030.33.3800).”
HOLDING:
By application of GRIs 1 and 6, the patch-clamp amplifiers are classified under heading 9030, HTSUS, and specifically described by statistical reporting number 9030.33.3800, HTSUSA, which provides for “Oscilloscopes, spectrum analyzers and other instruments and apparatus for measuring or checking electrical quantities, excluding meters of heading 9028; instruments and apparatus for measuring or detecting alpha, beta, gamma, X-ray, cosmic or other ionizing radiations; parts and accessories thereof: Other instruments and apparatus, for measuring or checking voltage, current, resistance or power: Other, without a recording device: Other.”
The subject patch-clamp amplifiers are accurately described under U.S. Note 20(x)(90) and thus fall under the scope of an exclusion under subheading 9903.88.19.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.
You are instructed to GRANT the Protest.
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 CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP website at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Craig T. Clark, Director
Commercial and Trade Facilitation Division