March 15, 2006 CBP Bulletin Notice on HyperD Chromatography Sorbents

CBP states that any party who has received an interpretive ruling or decision on merchandise subject to this notice, and/or any person involved in substantially identical transactions should advise CBP by April 14, 2006, the date that written comments on the proposed rulings are due. Furthermore, CBP states that an importer's failure to advise CBP of such rulings, decisions, or substantially identical transactions may raise issues of reasonable care on the part of the importer or its agent for importations subsequent to the effective date of the final decision in this notice.

CBP also states that this notice covers any rulings on the subject merchandise that may exist but have not been specifically identified.

Proposed Revocation of Two Classification Rulings

HyperD chromatography sorbents. At issue are different types of HyperD and Ceramic HyperD chromatography sorbents that vary in structure and material composition. One component of the subject chromatography sorbents is a co-polymeric cross-linked network (hydrogel), which governs the exchange mechanism for macromolecule or particle adsorption. Chromatographic sorbents are used for, among other things, the purification and preparation of protein substances in the laboratory or in industry, the final destination being related to particle size and the particle size distribution (small particles are used at the laboratory scale, large particles for high productivity at industrial scale.) (See CBP's notice for further description of the individual items at issue.)

CBP is proposing to issue HQ 967094 and HQ 967095 in order to revoke HQ 962429 and NY D84807, respectively, and reclassify the subject merchandise under HTS 3906.90.5000 as "Acrylic polymers in primary forms: other: other: other;" rather than under 3822.00.5090 as "Diagnostic or laboratory reagents on a backing, etc."

CBP states that it now believes that the subject products are not reagents at all and while the Explanatory Notes (ENs) specifically include a seemingly broad spectrum of reagents, including "other analytical reagents used for purposes other than detection or diagnosis," CBP contends that separation media cannot be considered a reagent, analytical, or otherwise as explained below.

CBP explains that a reagent is a chemical agent for use in a chemical reaction and is typically mixed with another chemical, reacts with it, and is consumed in that reaction, creating a different set of chemicals. Separation media are not involved in such a reaction. Although separation media may contribute to the analysis of other substances by separating them into constituent parts, there is no chemical reaction that consumes the reagent. Rather, the separation media simply attract certain ions throughout adsorption, separating them from the original molecule without chemically reacting to them.

As a result, CBP states that the essential character of the chromatography sorbents is imparted by the hydrogel, which is classifiable in HTS heading 3906, as an "acrylic polymer." CBP adds that the nature of each sorbent product only depends upon the composition of the hydrogel and is not affected by any potential chromatographic activity of the substrate [contained in the subject sorbent products].

Hence, under General Rules of Interpretation (GRI) 3(b), CBP finds that the various HyperD chromatography sorbents are described by the material that gives the product its essential character-the hydrogel-and should therefore be classified in HTS 3906.90.5000.

Some of the sorbent products at issue include: Protein A HyperD, Protein A Ceramic HyperD F chromatography media, Heparin HyperD M, Blue Ceramic HyperD, Methyl Ceramic HyperD chromatographic media, etc.

proposed: HTS 3906.90.5000, 4.2%; current: 3822.00.5090, duty-free.

March 15, 2006 CBP Bulletin (Vol. 40, No. 12) available athttp://www.cbp.gov/xp/cgov/toolbox/legal/bulletins_decisions/bulletins_2006/vol40_03152006_no12/