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HQ 957439

April 18, 1995

CLA-2 R:C:F 957439 EAB


TARIFF NO.: 3821.00.0000

Area Director
U.S. Customs Service
6 World Trade Center
New York, New York 10048

RE: Application for Further Review of Protest No. 1001-4-103531, dated May 18, 1994, liquidated April 22, 1994; Agar strips

Dear Area Director:

This is a decision on a protest filed May 18, 1994, against your decision in the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of merchandise entered on January 13, 1994, and liquidated on April 22, 1994.


The protestant entered the merchandise under subheading 8479.90.8090, HTSUSA, a residual provision for "Parts" of machines and mechanical appliances having individual functions, not specified or included elsewhere in chapter 84 of the tariff schedule, bearing duty at the column one general rate of 3.7 percent ad valorem.

Customs liquidated the merchandise under subheading 9033.00.0000, HTSUSA, a provision for parts and accessories not specified elsewhere in chapter 90, for machines, appliances, instruments or apparatus of chapter 90, bearing duty at the column one general rate of 4.9 percent ad valorem.

Protestant seeks reclassification to the aforesaid provision of chapter 84. You are of the opinion the merchandise is properly classifiable under subheading 3821.00.0000, HTSUSA, a provision for prepared culture media, as more fully set forth therein, bearing duty at the column one general rate of 5 percent ad valorem at the time in question.

The merchandise consists of disposable and quite shallow, sectional, plastic trays, each prophylactically sealed and containing an agar gel culture media preparation. For example, one representative agar tray contains penase, a second contains mannitol/salt, a third contains rose/bengal and yet another contains a substance or substances identified as "NBB". A tray is exposed in a hand-held device with an impeller that draws ambient air over the exposed agar preparation. The tray is removed, resealed and set aside to "incubate" for 48 - 120 hours. After the appropriate time, a tray is examined to determine the airborne "count" of, for example, penicillins and semisynthetic penicillins, or staphylococci, or yeasts and molds, or beer spoiling micro-organisms that were resident at the sampling site.


Whether agar bearing trays impregnated with various bacteria or mirco-organisms are classifiable as "parts" of the hand-held air inductor into which they are inserted, or otherwise.


Merchandise imported into the U.S. is classified under the HTSUSA. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUSA and are to be considered statutory provisions of law for all purposes.

GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order.

Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System represent the official interpretation of the Customs Cooperation Council on the scope of each heading, and, although neither binding upon the contracting parties to the Harmonized System Convention nor considered to be dispositive interpretations, they should be consulted on the proper scope of the System.

It is well established that it is not universal and absolute, for classification purposes, that an article used with another article is a part of that other article. In Headquarters Ruling Letter HRL 089430 (March 26, 1992), disposable microcuvettes of plastic and containing a chemical reagent in a form designed to be inserted into a hemoglobin meter were held to be composite diagnostic reagents of heading 3822 and not parts of the hemoglobin meter. To this same effect see also HRL 088196 (December 8, 1992) concerning disposable glucose test strips designed for use with a blood monitoring mechanism and HRL 088126 (March 26, 1992) regarding disposable blood diagnostic cartridges.

We find that these single use agar preparations in plastic trays are not "parts" of the anemometer into which they are designed to be inserted.

Heading 3821 "covers various preparations in which bacteria, moulds, microbes, viruses and other micro-organisms required for medical purposes . . . or for other scientific purposes or in industry (e.g., in the manufacture of vinegar . . .) can find nourishment and multiply. . . . and often contain additional ingredients such as glucose, glycerol, [etc.] . . . and are sterilised and put up in sealed glass bottles, tubes, ampoules or tins." EN 38.21.

We find that the goods serve worthy industry purposes, such as achieving healthier work environments and better beer, contain additives to the agar, are sterilized and put up in sealed packings, and are described by the terms of heading 3821 of the tariff schedule.


You are instructed to deny the protest in full.

The goods are properly classifiable under subheading 3821.00.0000, HTSUSA, a provision for prepared culture media for development of micro-organisms.

Merchandise entered under the foregoing provision in 1994 would have been subject to the column one general rate of duty of 5 percent ad valorem.

A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1992, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with this decision must be accomplished prior to your mailing of this decision to the protestant. Sixty days from the date of this decision, the Office of Regulations and Rulings will take steps to make the decision available to customs personnel via the Customs Ruling Module in ACS and the public vial the diskette Subscription Service, Freedom of Information Act and other public access channels.


John Durant, Director

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