H329714

HQ H329714 June 20, 2023 OT:RR:CTF:EMAIN H329714 PF CATEGORY: Classification TARIFF NOs.: 3917.29.00; 7326.90.86 Center Director Base Metals Center of Excellence and Expertise U.S. Customs and Border Protection Port of Minneapolis, MN 5600 W. American Blvd., Suite 760 Bloomington, MN 55437 Attn: Mark Marrano, Import Specialist RE: Protest and Application for Further Review No: 3501-22-103123; Classification of Neck Tubes and Canisters Dear Center Director: The following is our decision as to Protest and Application for Further Review No. 3501-22-103123, which was filed on December 21, 2022 by MVE Biological Solutions U.S., Inc. (“protestant”). The protest pertains to the classification of canisters and neck tubes used in a Dewars Tank under the Harmonized Tariff Schedule of the United States (“HTSUS”). The subject merchandise was entered by protestant on July 30, 2021 and liquidated on June 24, 2022. U.S. Customs and Border Protection (“CBP”) liquidated the cannisters under heading 7326, HTSUS, which provides for “Other articles of iron or steel” and the tubes under heading 3917, HTSUS, which provides for “Tubes, pipes and hoses and fittings therefor (for example, joints, elbows, flanges), of plastics.” On December 21, 2022, protestant filed a protest and AFR regarding the tariff classification of the subject merchandise and claiming that the correct classification of the subject merchandise should be a part within heading 8418, HTSUS, which provides for “Refrigerators, freezers and other refrigerating or freezing equipment, electric or other; heat pumps, other than the air conditioning machines of heading 8415; parts thereof.” FACTS: The Protestant describes the Dewars tank as a double-walled, vacuum insulated vessel, which uses liquid nitrogen, for the storage and transfer of biological samples. According to the Protestant, the neck tubes are used as structural components joining the inner and outer vessel and securely holding the specimen-filled containers. The neck tube is a rigid product designed to withstand stress caused by the extreme temperature of the liquid nitrogen. The neck tubs are composed of fiberglass-reinforced epoxy, which is a rigid plastic. Further, the neck tube is in a straight standard shape, much like a length of plumbing pipe. The Protestant states that the canisters are stainless steel vessels with a long handle and a perforated bottom disc. The perforated bottom facilitates the canister’s submersion and extraction out of the liquid nitrogen filled Dewars tank. The canisters are used for the insertion, storage and removal of the biological samples being stored in the Dewars tank. The long handle is laminated in order to minimize any heat transfer that would negatively affect the biological sample. In use, the canisters are supported by the neck tube. As designed, the canisters are used for the purpose of securely holding in place and the safe retrieval of the biological samples from the Dewars tank. The follow image of the subject merchandise (neck tubes and canisters) were provided by the Protestant: 
 ISSUES: Whether the neck tubes are classifiable in heading 3917, HTSUS, as tubes of plastic or in heading 8418, as parts of refrigerating equipment. Whether the canisters are classifiable in heading 7326, HTSUS, as other articles of steel or in heading 8418, as parts of refrigerating equipment. 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 Protest No. 3501-22-103123 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to be inconsistent with a previous CBP decision concerning substantially similar merchandise. The 2021 HTSUS headings under consideration are as follows: 3917 Tubes, pipes and hoses and fittings therefor (for example, joints, elbows, flanges), of plastics: 7326 Other articles of iron or steel: 8418 Refrigerators, freezers and other refrigerating or freezing equipment, electric or other; heat pumps, other than the air conditioning machines of heading 8415; parts thereof: Section XV, Note 1, states, in pertinent part: This section does not cover: (f) Articles of section XVI (machinery, mechanical appliances and electrical goods)…. Section XVI, Note 1, states, in pertinent part, This section does not cover: (g) Parts of general use, as defined in note 2 to section XV, of base metal (section XV), or similar goods of plastics (chapter 39)…. Section XV, Note 2, states, in relevant part: Throughout the tariff schedule, the expression “parts of general use means: Articles of heading 7307, 7312, 7315, 7317 or 7318 and similar articles of other base metals….” Note 1 to Chapter 39, HTSUS, defines “plastics” as: [T]hose materials of headings 3901 to 3914 which are or have been capable, either at the moment of polymerization or at some subsequent stage, of being formed under external influence (usually heat and pressure, if necessary with a solvent or plasticizer) by molding, casting, extruding, rolling or other process into shapes which are retained on the removal of the external influence. Throughout the tariff schedule, any reference to “plastics” also includes vulcanized fiber. The expression, however, does not apply to materials regarded as textile materials of section XI. Note 2 to Chapter 39 provides, in pertinent part: This Chapter does not cover: (s) Articles of section XVI (machine and mechanical or electrical appliances); Note 8 to chapter 39 states, in relevant part: 8. For the purposes of heading 3917, the expression “tubes, pipes and hoses” means hollow products, whether semimanufactures or finished products, of a kind generally used for conveying, conducting or distributing gases or liquids (for example, ribbed garden hose, perforated tubes)…. Note 2 to Section XVI (Chapters 84-85) states, in pertinent part, that: Subject to note 1 to this section, note 1 to chapter 84 and note 1 to chapter 85, parts of machines (not being parts of the articles of heading 8484, 8544, 8545, 8546 or 8547) are to be classified according to the following rules: Parts which are goods included in any of the headings of chapter 84 or 85 (other than headings 8409, 8431, 8448, 8466, 8473, 8487, 8503, 8522, 8529, 8538 and 8548) are in all cases to be classified in their respective headings; Other parts, if suitable for use solely or principally with a particular kind of machine, or with a number of machines of the same heading (including a machine of heading 8479 or 8543) are to be classified with the machines of that kind or in heading 8409, 8431, 8448, 8466, 8473, 8503, 8522, 8529 or 8538 as appropriate. However, parts which are equally suitable for use principally with the goods of headings 8517 and 8525 to 8528 are to be classified in heading 8517 … In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989). The EN to heading 3917 states, in pertinent part: This heading also includes fittings of plastics for tubes, pipes and hoses (for example, joints, elbows, flanges). The EN to heading 7307, which covers “tube or pipe fittings (for example, couplings, elbows, sleeves), of iron or steel”, provides: This heading covers fittings of iron or steel, mainly used for connecting the bores of two tubes together

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 Protest No. 3501-22-103123 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to be inconsistent with a previous CBP decision concerning substantially similar merchandise.The 2021 HTSUS headings under consideration are as follows:3917 Tubes, pipes and hoses and fittings therefor (for example, joints, elbows, flanges), of plastics:7326 Other articles of iron or steel:8418 Refrigerators, freezers and other refrigerating or freezing equipment, electric or other; heat pumps, other than the air conditioning machines of heading 8415; parts thereof:Section XV, Note 1, states, in pertinent part:This section does not cover:(f) Articles of section XVI (machinery, mechanical appliances and electrical goods)…. Section XVI, Note 1, states, in pertinent part, This section does not cover:(g) Parts of general use, as defined in note 2 to section XV, of base metal (section XV), or similar goods of plastics (chapter 39)…. Section XV, Note 2, states, in relevant part:Throughout the tariff schedule, the expression “parts of general use means:Articles of heading 7307, 7312, 7315, 7317 or 7318 and similar articles of other base metals….”Note 1 to Chapter 39, HTSUS, defines “plastics” as:[T]hose materials of headings 3901 to 3914 which are or have been capable, either at the moment of polymerization or at some subsequent stage, of being formed under external influence (usually heat and pressure, if necessary with a solvent or plasticizer) by molding, casting, extruding, rolling or other process into shapes which are retained on t