83_FR_31895 83 FR 31764 - Notice of Issuance of Final Determination Concerning Malarone Tablets

83 FR 31764 - Notice of Issuance of Final Determination Concerning Malarone Tablets

DEPARTMENT OF HOMELAND SECURITY
U.S. Customs and Border Protection

Federal Register Volume 83, Issue 131 (July 9, 2018)

Page Range31764-31766
FR Document2018-14632

This document provides notice that U.S. Customs and Border Protection (``CBP'') has issued a final determination concerning the country of origin of Malarone tablets. Based upon the facts presented, CBP has concluded that the country of origin of the Malarone tablets is Canada for purposes of U.S. Government procurement.

Federal Register, Volume 83 Issue 131 (Monday, July 9, 2018)
[Federal Register Volume 83, Number 131 (Monday, July 9, 2018)]
[Notices]
[Pages 31764-31766]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-14632]


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DEPARTMENT OF HOMELAND SECURITY

U.S. Customs and Border Protection


Notice of Issuance of Final Determination Concerning Malarone 
Tablets

AGENCY: U.S. Customs and Border Protection, Department of Homeland 
Security.

ACTION: Notice of final determination.

-----------------------------------------------------------------------

SUMMARY: This document provides notice that U.S. Customs and Border 
Protection (``CBP'') has issued a final determination concerning the 
country of origin of Malarone tablets. Based upon the facts presented, 
CBP has concluded that the country of origin of the Malarone tablets is 
Canada for purposes of U.S. Government procurement.

DATES: This final determination was issued on July 2, 2018. A copy of 
the final determination is attached. Any party-at-interest may seek 
judicial review of this final determination within August 8, 2018.

FOR FURTHER INFORMATION CONTACT: Ross M. Cunningham, Valuation and 
Special Programs Branch, Regulations and Rulings, Office of Trade, 
(202) 325-0034.

SUPPLEMENTARY INFORMATION: Notice is hereby given that on July 2, 2018, 
pursuant to subpart B of Part 177, U.S. Customs and Border Protection 
Regulations (19 CFR part 177, subpart B), CBP issued one final 
determination concerning the country of origin of Malarone tablets, 
which may be offered to the U.S. Government under an undesignated 
government procurement contract. This final determination (HQ H290684) 
was issued under procedures set forth at 19 CFR part 177, subpart B, 
which implements Title III of the Trade Agreements Act of 1979, as 
amended (19 U.S.C. 2511-18). In the final determination, CBP concluded 
that the processing in Canada will result in a substantial 
transformation. Therefore, the country of origin for purposes of U.S. 
Government procurement of the Malarone tablets is Canada.
    Section 177.29, CBP Regulations (19 CFR 177.29), provides that a 
notice of final determination shall be published in the Federal 
Register within 60 days of the date the final determination is issued. 
Section 177.30, CBP Regulations (19 CFR 177.30), provides that any 
party-at-interest, as defined in 19 CFR 177.22(d), may seek judicial 
review of a final determination within 30 days of publication of such 
determination in the Federal Register.

    Dated: July 2, 2018.
Alice A. Kipel,
Executive Director, Regulations and Rulings, Office of Trade.
HQ H290684
July 2, 2018
OT:RR:CTF:VS H290684 RMC
CATEGORY: Origin
Nicolas Guzman
Drinker Biddle & Reath LLP
1500 K Street NW
Suite 1100
Washington, DC 20005-1209

Re: U.S. Government Procurement; Country of Origin of Malarone Tablets; 
Substantial Transformation

Dear Mr. Guzman:
    This is in response to your letter, dated September 13, 2017, 
requesting a final determination on behalf of GlaxoSmithKline LLP 
(``GSK'') pursuant to subpart B of Part 177 of the U.S. Customs and 
Border Protection (``CBP'') Regulations (19 C.F.R. Part 177). A 
teleconference was held with counsel for GSK on June 8, 2018.
    This final determination concerns the country of origin of Malarone 
tablets. As a U.S. importer, GSK is a party-at-interest within the 
meaning of 19 C.F.R. Sec.  177.22(d)(1) and is entitled to request this 
final determination.

FACTS:

    GSK is a global healthcare company that researches, develops, and 
manufactures pharmaceutical medicines, vaccines, and consumer 
healthcare products. At issue in this case are tablets sold under the 
brand name Malarone, which are indicated for the prevention and 
treatment of acute, uncomplicated Plasmodium falciparum malaria. GSK 
states that Malarone tablets have been shown to be effective in regions 
where other malaria drugs such as chloroquine, halofantrine, 
mefloquine, and amodiaquine may have unacceptable failure rates, 
presumably due to drug resistance.
    According to the FDA prescribing information, Malarone is a fixed-
dose combination of atovaquone and proguanil hydrochloride. See 
Prescribing Information, https://www.fda.gov/ohrms/dockets/ac/05/briefing/2005-4089b1_05_05_atovaquone.pdf (last visited Dec. 11, 2017). 
The chemical name of atovaquone 11 is trans-2-[4-(4 
chlorophenyl)cyclohexyl]-3-hydroxy-1,4-naphthalenedione and the 
molecular formula for atovaquone is C22H19ClO3. The chemical name of 
proguanil hydrochloride is 1-(4-chlorophenyl)-5-isopropyl-biguanide 
hydrochloride and the chemical formula for proguanil hydrochloride is 
C11H16ClN5HCl. Each Malarone Tablet contains 250 milligrams of 
atovaquone and 100 milligrams of proguanil hydrochloride.
    The FDA prescribing information also describes the microbiology or 
``mechanism of action'' of atovaquone and proguanil hydrochloride. It 
states that atovaquone and proguanil hydrochloride ``interfere with 2 
different pathways involved in the biosynthesis of pyrimidines required 
for nucleic acid replication. Atovaquone is a selective inhibitor of 
parasite mitochondrial electron transport. Proguanil hydrochloride 
primarily exerts its effect by means of the metabolite cycloguanil, a 
dihydrofolate reductase inhibitor. Inhibition of dihydrofolate 
reductase in the malaria

[[Page 31765]]

parasite disrupts deoxythymidylate synthesis.''
    GSK notes that atovaquone by itself is not indicated for the 
prevention or treatment of malaria. By itself, atovaquone is used for 
other purposes, such as the treatment of acute pneumocystis carinii 
pneumonia and cerebral toxoplasmosis. In contrast, proguanil 
hydrochloride can be used to treat malaria. However, GSK cites to 
several academic studies that conclude that the combination of 
atovaquone and proguanil hydrochloride provides a more effective 
treatment compared to taking proguanil hydrochloride alone. GSK 
therefore states that atovaquone and proguanil are ``synergistic in 
their mechanisms of action,'' resulting in the increased effectiveness 
of Malarone tablets compared to taking atovaquone or proguanil 
hydrochloride alone.
    The manufacturing process for GSK's Malarone tablets begins in 
India, where the Malarone tablets' two active pharmaceutical 
ingredients (``APIs''), atovaquone and proguanil hydrochloride, are 
manufactured. After the two APIs are manufactured in India, they are 
imported into Canada for further processing at GSK's Mississauga, 
Ontario facility (``GSK Canada''). At GSK Canada, the two APIs are 
combined in a process that begins by producing a dry mix of the APIs, 
low-substituted hydroxpropyl cellulose NF, microcrystalline cellulose 
NF, and sodium starch glycolate NF. The dry mix is then combined with 
the following inactive ingredients, which are each sourced from the 
United States or a TAA-eligible country, to produce granules:
 Povidone K30 USP
 Polaxamer 188 NF
 Sofium Starch Glycolate NF
 Hydroxy Propyl Cellulose NF
 Purified Water USP
 Microcrystalline Cellulose NF
 Alcohol USP
    Next, the granules are dried, milled into a dry powder, blended 
with magnesium stearate NF, and compressed into tablets. Finally, a 
film coat mix is added and the tablets are polished.
    Once the manufacturing process is complete, the finished Malarone 
tablets are exported to a GSK facility in Zebulon, North Carolina. 
There, the tablets are packaged and labeled for sale to Prasco 
Laboratories, which markets and distributes the tablets under their own 
labeling as an authorized generic product under an agreement with GSK.

ISSUE:

    What is the country of origin of the Malarone tablets for purposes 
of U.S. Government procurement?

LAW AND ANALYSIS:

    CBP issues country of origin advisory rulings and final 
determinations as to whether an article is or would be a product of a 
designated country or instrumentality for the purposes of granting 
waivers of certain ``Buy American'' restrictions in U.S. law or 
practice for products offered for sale to the U.S. Government, pursuant 
to subpart B of Part 177, 19 C.F.R. Sec.  177.21 et seq., which 
implements Title III of the Trade Agreements Act of 1979, as amended 
(19 U.S.C. Sec.  2511 et seq.).
    Under the rule of origin set forth under 19 U.S.C. Sec.  
2518(4)(B):

    An article is a product of a country or instrumentality only if 
(i) it is wholly the growth, product, or manufacture of that country 
or instrumentality, or (ii) in the case of an article which consists 
in whole or in part of materials from another country or 
instrumentality, it has been substantially transformed into a new 
and different article of commerce with a name, character, or use 
distinct from that of the article or articles from which it was so 
transformed.

See also 19 C.F.R. Sec.  177.22(a).
    A substantial transformation occurs when an article emerges from a 
process with a new name, character, and use different from that 
possessed by the article prior to processing. A substantial 
transformation will not result from a minor manufacturing or combining 
process that leaves the identity of the article intact. See United 
States v. Gibson-Thomsen Co., 27 C.C.P.A. 267 (1940); and National 
Juice Products Ass'n v. United States, 628 F. Supp. 978 (Ct. Int'l 
Trade 1986).
    In determining whether a substantial transformation occurs in the 
manufacture of chemical products such as pharmaceuticals, CBP has 
consistently examined the complexity of the processing and whether the 
final article retains the essential identity and character of the raw 
material. To that end, CBP has generally held that the processing of 
pharmaceutical products from bulk form into measured doses does not 
result in a substantial transformation of the product. See, e.g., 
Headquarters Ruling (``HQ'') 561975, dated April 3, 2002; HQ 561544, 
dated May 1, 2000; HQ 735146, dated November 15, 1993; HQ H267177, 
dated November 5, 2016; HQ H233356, dated December 26, 2012; and, HQ 
561975, dated April 3, 2002. However, where the processing from bulk 
form into measured doses involves the combination of two or more APIs, 
and the resulting combination offers additional medicinal benefits 
compared to taking each API alone, CBP has held that a substantial 
transformation occurred. See, e.g., HQ 563207, dated June 1, 2005.
    For example, in HQ 563207, CBP held that the combination of two 
APIs to form Actoplus Met, an alternative treatment for type 2 
diabetes, constituted a substantial transformation. The first API, 
Pioglitazone HCI sourced from Japan or other countries, functioned as 
an insulin sensitizer that targets insulin resistance in the body. The 
second API, biguanide sourced from Japan, Spain, and other countries, 
functioned to decrease the amount of glucose produced by the liver and 
make muscle tissue more sensitive to insulin so glucose can be 
absorbed. In Japan, the two APIs were mixed together to form a fixed-
combination drug called Actoplus Met. In holding that a substantial 
transformation occurred when the APIs were combined in Japan to produce 
Actoplus Met, CBP emphasized that ``[w]hile we note that pioglitazone 
and metformin may be prescribed separately, the final product, Actoplus 
Met, increases the individual effectiveness of piofliazone and 
metformin in treating type 2 diabetes patients.''
    Similarly, in HQ H253443, dated March 13, 2015, CBP held that the 
combination of two APIs in China to produce Prepopik, ``a dual-acting 
osmotic and stimulant laxative bowel preparation for a colonoscopy in 
adults,'' constituted a substantial transformation. Although the 
importer claimed that Country A-origin sodium picosulfate was the only 
API in Prepopik, CBP found that the Country B-origin magnesium oxide 
ingredient also qualified as an API. CBP further found that taking 
Prepopik had ``a more stimulative laxative effect'' than taking each of 
the APIs individually and therefore held that a substantial 
transformation occurred when the APIs were combined in China.
    Here, as in HQ 563207 and HQ H253443, two separate APIs are mixed 
to create a fixed combination drug that offers additional medicinal 
benefits compared to taking each API alone. The first API, atovaquone, 
is not indicated for the prevention or treatment of malaria. The second 
API, proguanil hydrochloride, is used to treat malaria, but is less 
effective than Malarone. This is because of the ``synergies in [the 
APIs'] method of action,'' which result in a product that 
``interfere[s] with 2 different pathways'' to prevent and treat 
malaria. Under these circumstances, the combination of atovaquone, 
proguanil

[[Page 31766]]

hydrochloride, and inactive ingredients to form Malarone tablets in 
Canada results in a substantial transformation. The country of origin 
of the Malarone tablets is therefore Canada.

HOLDING:

    The country of origin of the Malarone tablets for purposes of U.S. 
Government procurement is Canada.
    Notice of this final determination will be given in the Federal 
Register, as required by 19 C.F.R. Sec.  177.29. Any party-at-interest 
other than the party which requested this final determination may 
request, pursuant to 19 C.F.R. Sec.  177.31, that CBP reexamine the 
matter anew and issue a new final determination. Pursuant to 19 C.F.R. 
Sec.  177.30, any party-at-interest may, within 30 days of publication 
of the Federal Register Notice referenced above, seek judicial review 
of this final determination before the Court of International Trade.

Sincerely,

Alice A. Kipel,
Executive Director, Regulations & Rulings Office of Trade.

[FR Doc. 2018-14632 Filed 7-6-18; 8:45 am]
 BILLING CODE 9111-14-P



                                                31764                            Federal Register / Vol. 83, No. 131 / Monday, July 9, 2018 / Notices

                                                Coast Guard will refer to NVIC 01–2011                   Malarone tablets is Canada for purposes               final determination on behalf of
                                                for process information and guidance in                  of U.S. Government procurement.                       GlaxoSmithKline LLP (‘‘GSK’’) pursuant
                                                evaluating SPLNG’s WSA. NVIC 01–                         DATES: This final determination was                   to subpart B of Part 177 of the U.S.
                                                2011 is available in the docket where                    issued on July 2, 2018. A copy of the                 Customs and Border Protection (‘‘CBP’’)
                                                indicated under ADDRESSES and also on                    final determination is attached. Any                  Regulations (19 C.F.R. Part 177). A
                                                the Coast Guard’s website at https://                    party-at-interest may seek judicial                   teleconference was held with counsel
                                                www.dco.uscg.mil/Portals/9/                              review of this final determination                    for GSK on June 8, 2018.
                                                DCO%20Documents/5p/5ps/NVIC/                             within August 8, 2018.                                   This final determination concerns the
                                                2011/NVIC%2001-2011%20Final.pdf.                         FOR FURTHER INFORMATION CONTACT: Ross                 country of origin of Malarone tablets. As
                                                IV. Public Participation and Request for                 M. Cunningham, Valuation and Special                  a U.S. importer, GSK is a party-at-
                                                Comments                                                 Programs Branch, Regulations and                      interest within the meaning of 19 C.F.R.
                                                                                                         Rulings, Office of Trade, (202) 325–                  § 177.22(d)(1) and is entitled to request
                                                   We encourage you to submit                            0034.                                                 this final determination.
                                                comments through the Federal portal at
                                                                                                         SUPPLEMENTARY INFORMATION: Notice is                  FACTS:
                                                http://www.regulations.gov. If your
                                                material cannot be submitted using                       hereby given that on July 2, 2018,
                                                                                                         pursuant to subpart B of Part 177, U.S.                  GSK is a global healthcare company
                                                http://www.regulations.gov, contact the                                                                        that researches, develops, and
                                                person in the FOR FURTHER INFORMATION                    Customs and Border Protection
                                                                                                         Regulations (19 CFR part 177, subpart                 manufactures pharmaceutical
                                                CONTACT section of this document for                                                                           medicines, vaccines, and consumer
                                                alternate instructions. In your                          B), CBP issued one final determination
                                                                                                         concerning the country of origin of                   healthcare products. At issue in this
                                                submission, please include the docket                                                                          case are tablets sold under the brand
                                                                                                         Malarone tablets, which may be offered
                                                number for this notice of inquiry and                                                                          name Malarone, which are indicated for
                                                                                                         to the U.S. Government under an
                                                provide a reason for each suggestion or                                                                        the prevention and treatment of acute,
                                                                                                         undesignated government procurement
                                                recommendation.                                                                                                uncomplicated Plasmodium falciparum
                                                                                                         contract. This final determination (HQ
                                                   We accept anonymous comments. All                                                                           malaria. GSK states that Malarone
                                                                                                         H290684) was issued under procedures
                                                comments received will be posted                                                                               tablets have been shown to be effective
                                                                                                         set forth at 19 CFR part 177, subpart B,
                                                without change to http://                                                                                      in regions where other malaria drugs
                                                                                                         which implements Title III of the Trade
                                                www.regulations.gov and will include                                                                           such as chloroquine, halofantrine,
                                                                                                         Agreements Act of 1979, as amended
                                                any personal information you have                                                                              mefloquine, and amodiaquine may have
                                                                                                         (19 U.S.C. 2511–18). In the final
                                                provided. For more about privacy and                                                                           unacceptable failure rates, presumably
                                                                                                         determination, CBP concluded that the
                                                the docket, visit http://                                                                                      due to drug resistance.
                                                                                                         processing in Canada will result in a
                                                www.regulations.gov/privacyNotice.                                                                                According to the FDA prescribing
                                                                                                         substantial transformation. Therefore,
                                                   Documents mentioned in this notice                                                                          information, Malarone is a fixed-dose
                                                                                                         the country of origin for purposes of
                                                of inquiry as being available in the                                                                           combination of atovaquone and
                                                                                                         U.S. Government procurement of the
                                                docket, and all public comments, will                                                                          proguanil hydrochloride. See
                                                                                                         Malarone tablets is Canada.
                                                be in our online docket at http://                          Section 177.29, CBP Regulations (19                Prescribing Information, https://
                                                www.regulations.gov and can be viewed                    CFR 177.29), provides that a notice of                www.fda.gov/ohrms/dockets/ac/05/
                                                by following that website’s instructions.                final determination shall be published                briefing/2005-4089b1_05_05_
                                                   This document is issued under                         in the Federal Register within 60 days                atovaquone.pdf (last visited Dec. 11,
                                                authority of 5 U.S.C. 552 (a).                           of the date the final determination is                2017). The chemical name of
                                                  Dated: July 2, 2018.                                   issued. Section 177.30, CBP Regulations               atovaquone 11 is trans-2-[4-(4
                                                Jacqueline Twomey,                                       (19 CFR 177.30), provides that any                    chlorophenyl)cyclohexyl]-3-hydroxy-
                                                Captain, U.S. Coast Guard, Captain of the                party-at-interest, as defined in 19 CFR               1,4-naphthalenedione and the molecular
                                                Port Marine Safety Unit Port Arthur.                     177.22(d), may seek judicial review of a              formula for atovaquone is C22H19ClO3.
                                                [FR Doc. 2018–14596 Filed 7–6–18; 8:45 am]               final determination within 30 days of                 The chemical name of proguanil
                                                BILLING CODE 9110–04–P                                   publication of such determination in the              hydrochloride is 1-(4-chlorophenyl)-5-
                                                                                                         Federal Register.                                     isopropyl-biguanide hydrochloride and
                                                                                                           Dated: July 2, 2018.                                the chemical formula for proguanil
                                                DEPARTMENT OF HOMELAND                                   Alice A. Kipel,                                       hydrochloride is C11H16ClN5•HCl.
                                                SECURITY                                                 Executive Director, Regulations and Rulings,          Each Malarone Tablet contains 250
                                                                                                         Office of Trade.                                      milligrams of atovaquone and 100
                                                U.S. Customs and Border Protection                                                                             milligrams of proguanil hydrochloride.
                                                                                                         HQ H290684                                               The FDA prescribing information also
                                                Notice of Issuance of Final                                                                                    describes the microbiology or
                                                                                                         July 2, 2018
                                                Determination Concerning Malarone                                                                              ‘‘mechanism of action’’ of atovaquone
                                                Tablets                                                  OT:RR:CTF:VS H290684 RMC
                                                                                                                                                               and proguanil hydrochloride. It states
                                                AGENCY:  U.S. Customs and Border                         CATEGORY: Origin                                      that atovaquone and proguanil
                                                Protection, Department of Homeland                       Nicolas Guzman                                        hydrochloride ‘‘interfere with 2
                                                Security.                                                Drinker Biddle & Reath LLP                            different pathways involved in the
                                                ACTION: Notice of final determination.                   1500 K Street NW                                      biosynthesis of pyrimidines required for
                                                                                                         Suite 1100                                            nucleic acid replication. Atovaquone is
sradovich on DSK3GMQ082PROD with NOTICES




                                                SUMMARY:   This document provides                        Washington, DC 20005–1209                             a selective inhibitor of parasite
                                                notice that U.S. Customs and Border                      Re: U.S. Government Procurement;                      mitochondrial electron transport.
                                                Protection (‘‘CBP’’) has issued a final                    Country of Origin of Malarone                       Proguanil hydrochloride primarily
                                                determination concerning the country of                    Tablets; Substantial Transformation                 exerts its effect by means of the
                                                origin of Malarone tablets. Based upon                   Dear Mr. Guzman:                                      metabolite cycloguanil, a dihydrofolate
                                                the facts presented, CBP has concluded                     This is in response to your letter,                 reductase inhibitor. Inhibition of
                                                that the country of origin of the                        dated September 13, 2017, requesting a                dihydrofolate reductase in the malaria


                                           VerDate Sep<11>2014   18:00 Jul 06, 2018   Jkt 244001   PO 00000   Frm 00050   Fmt 4703   Sfmt 4703   E:\FR\FM\09JYN1.SGM   09JYN1


                                                                                 Federal Register / Vol. 83, No. 131 / Monday, July 9, 2018 / Notices                                           31765

                                                parasite disrupts deoxythymidylate                       ISSUE:                                                the resulting combination offers
                                                synthesis.’’                                               What is the country of origin of the                additional medicinal benefits compared
                                                   GSK notes that atovaquone by itself is                Malarone tablets for purposes of U.S.                 to taking each API alone, CBP has held
                                                not indicated for the prevention or                      Government procurement?                               that a substantial transformation
                                                treatment of malaria. By itself,                                                                               occurred. See, e.g., HQ 563207, dated
                                                                                                         LAW AND ANALYSIS:                                     June 1, 2005.
                                                atovaquone is used for other purposes,
                                                such as the treatment of acute                              CBP issues country of origin advisory                 For example, in HQ 563207, CBP held
                                                pneumocystis carinii pneumonia and                       rulings and final determinations as to                that the combination of two APIs to
                                                                                                         whether an article is or would be a                   form Actoplus Met, an alternative
                                                cerebral toxoplasmosis. In contrast,
                                                                                                         product of a designated country or                    treatment for type 2 diabetes,
                                                proguanil hydrochloride can be used to
                                                                                                         instrumentality for the purposes of                   constituted a substantial transformation.
                                                treat malaria. However, GSK cites to
                                                                                                         granting waivers of certain ‘‘Buy                     The first API, Pioglitazone HCI sourced
                                                several academic studies that conclude
                                                                                                         American’’ restrictions in U.S. law or                from Japan or other countries,
                                                that the combination of atovaquone and
                                                                                                         practice for products offered for sale to             functioned as an insulin sensitizer that
                                                proguanil hydrochloride provides a
                                                                                                         the U.S. Government, pursuant to                      targets insulin resistance in the body.
                                                more effective treatment compared to
                                                                                                         subpart B of Part 177, 19 C.F.R. § 177.21             The second API, biguanide sourced
                                                taking proguanil hydrochloride alone.
                                                                                                         et seq., which implements Title III of the            from Japan, Spain, and other countries,
                                                GSK therefore states that atovaquone
                                                                                                         Trade Agreements Act of 1979, as                      functioned to decrease the amount of
                                                and proguanil are ‘‘synergistic in their                                                                       glucose produced by the liver and make
                                                mechanisms of action,’’ resulting in the                 amended (19 U.S.C. § 2511 et seq.).
                                                                                                            Under the rule of origin set forth                 muscle tissue more sensitive to insulin
                                                increased effectiveness of Malarone                                                                            so glucose can be absorbed. In Japan, the
                                                tablets compared to taking atovaquone                    under 19 U.S.C. § 2518(4)(B):
                                                                                                                                                               two APIs were mixed together to form
                                                or proguanil hydrochloride alone.                           An article is a product of a country or
                                                                                                                                                               a fixed-combination drug called
                                                                                                         instrumentality only if (i) it is wholly the
                                                   The manufacturing process for GSK’s                   growth, product, or manufacture of that               Actoplus Met. In holding that a
                                                Malarone tablets begins in India, where                  country or instrumentality, or (ii) in the case       substantial transformation occurred
                                                the Malarone tablets’ two active                         of an article which consists in whole or in           when the APIs were combined in Japan
                                                pharmaceutical ingredients (‘‘APIs’’),                   part of materials from another country or             to produce Actoplus Met, CBP
                                                atovaquone and proguanil                                 instrumentality, it has been substantially            emphasized that ‘‘[w]hile we note that
                                                hydrochloride, are manufactured. After                   transformed into a new and different article          pioglitazone and metformin may be
                                                the two APIs are manufactured in India,                  of commerce with a name, character, or use            prescribed separately, the final product,
                                                                                                         distinct from that of the article or articles
                                                they are imported into Canada for                                                                              Actoplus Met, increases the individual
                                                                                                         from which it was so transformed.
                                                further processing at GSK’s Mississauga,                                                                       effectiveness of piofliazone and
                                                Ontario facility (‘‘GSK Canada’’). At                    See also 19 C.F.R. § 177.22(a).                       metformin in treating type 2 diabetes
                                                GSK Canada, the two APIs are combined                       A substantial transformation occurs                patients.’’
                                                in a process that begins by producing a                  when an article emerges from a process                   Similarly, in HQ H253443, dated
                                                dry mix of the APIs, low-substituted                     with a new name, character, and use                   March 13, 2015, CBP held that the
                                                hydroxpropyl cellulose NF,                               different from that possessed by the                  combination of two APIs in China to
                                                microcrystalline cellulose NF, and                       article prior to processing. A substantial            produce Prepopik, ‘‘a dual-acting
                                                sodium starch glycolate NF. The dry                      transformation will not result from a                 osmotic and stimulant laxative bowel
                                                mix is then combined with the                            minor manufacturing or combining                      preparation for a colonoscopy in
                                                following inactive ingredients, which                    process that leaves the identity of the               adults,’’ constituted a substantial
                                                are each sourced from the United States                  article intact. See United States v.                  transformation. Although the importer
                                                or a TAA-eligible country, to produce                    Gibson-Thomsen Co., 27 C.C.P.A. 267                   claimed that Country A-origin sodium
                                                granules:                                                (1940); and National Juice Products                   picosulfate was the only API in
                                                                                                         Ass’n v. United States, 628 F. Supp. 978              Prepopik, CBP found that the Country
                                                • Povidone K30 USP                                       (Ct. Int’l Trade 1986).                               B-origin magnesium oxide ingredient
                                                • Polaxamer 188 NF                                          In determining whether a substantial               also qualified as an API. CBP further
                                                • Sofium Starch Glycolate NF                             transformation occurs in the                          found that taking Prepopik had ‘‘a more
                                                                                                         manufacture of chemical products such                 stimulative laxative effect’’ than taking
                                                • Hydroxy Propyl Cellulose NF
                                                                                                         as pharmaceuticals, CBP has                           each of the APIs individually and
                                                • Purified Water USP                                     consistently examined the complexity of               therefore held that a substantial
                                                • Microcrystalline Cellulose NF                          the processing and whether the final                  transformation occurred when the APIs
                                                • Alcohol USP                                            article retains the essential identity and            were combined in China.
                                                                                                         character of the raw material. To that                   Here, as in HQ 563207 and HQ
                                                   Next, the granules are dried, milled                  end, CBP has generally held that the                  H253443, two separate APIs are mixed
                                                into a dry powder, blended with                          processing of pharmaceutical products                 to create a fixed combination drug that
                                                magnesium stearate NF, and                               from bulk form into measured doses                    offers additional medicinal benefits
                                                compressed into tablets. Finally, a film                 does not result in a substantial                      compared to taking each API alone. The
                                                coat mix is added and the tablets are                    transformation of the product. See, e.g.,             first API, atovaquone, is not indicated
                                                polished.                                                Headquarters Ruling (‘‘HQ’’) 561975,                  for the prevention or treatment of
                                                   Once the manufacturing process is                     dated April 3, 2002; HQ 561544, dated                 malaria. The second API, proguanil
                                                complete, the finished Malarone tablets                  May 1, 2000; HQ 735146, dated                         hydrochloride, is used to treat malaria,
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                                                are exported to a GSK facility in                        November 15, 1993; HQ H267177, dated                  but is less effective than Malarone. This
                                                Zebulon, North Carolina. There, the                      November 5, 2016; HQ H233356, dated                   is because of the ‘‘synergies in [the
                                                tablets are packaged and labeled for sale                December 26, 2012; and, HQ 561975,                    APIs’] method of action,’’ which result
                                                to Prasco Laboratories, which markets                    dated April 3, 2002. However, where the               in a product that ‘‘interfere[s] with 2
                                                and distributes the tablets under their                  processing from bulk form into                        different pathways’’ to prevent and treat
                                                own labeling as an authorized generic                    measured doses involves the                           malaria. Under these circumstances, the
                                                product under an agreement with GSK.                     combination of two or more APIs, and                  combination of atovaquone, proguanil


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                                                31766                            Federal Register / Vol. 83, No. 131 / Monday, July 9, 2018 / Notices

                                                hydrochloride, and inactive ingredients                  by contacting Jan Zegarra, U.S. Fish and              and grasses (Rı́os-López and Thomas
                                                to form Malarone tablets in Canada                       Wildlife Service, Caribbean Ecological                2007). The species is currently
                                                results in a substantial transformation.                 Services Field Office, P.O. Box 491,                  threatened by the combined influences
                                                The country of origin of the Malarone                    Boquerón, PR 00622; tel. (787) 851–                  of urban development, activities
                                                tablets is therefore Canada.                             7297; or by visiting the Service’s                    associated with the operation and future
                                                                                                         Caribbean Field Office website at                     closure of the Toa Baja municipal
                                                HOLDING:
                                                                                                         https://www.fws.gov/caribbean/ES/                     landfill, activities associated with
                                                  The country of origin of the Malarone                  Index.html.                                           clearing water channels for flood
                                                tablets for purposes of U.S. Government                     Comment submission: You may                        control, and invasive wetland plant
                                                procurement is Canada.                                   submit comments by one of the                         species. Additional threats include
                                                  Notice of this final determination will                following methods:                                    restricted distribution and highly
                                                be given in the Federal Register, as                        1. Submit written comments and                     specialized ecological requirements,
                                                required by 19 C.F.R. § 177.29. Any                      materials by mail or hand-delivery to                 which may exacerbate other potential
                                                party-at-interest other than the party                   Jan Zegarra, at the above address.                    threats like landfill leachate pollution,
                                                which requested this final                                  2. Fax them to (787) 851–7440.                     the use of herbicides, brush fires,
                                                determination may request, pursuant to                      3. Send comments by email to jan_                  competition, and environmental effects
                                                19 C.F.R. § 177.31, that CBP reexamine                   zegarra@fws.gov. Please include ‘‘Coquı́
                                                                                                                                                               resulting from climate change.
                                                the matter anew and issue a new final                    llanero Draft Recovery Plan Comments’’
                                                determination. Pursuant to 19 C.F.R.                     in the subject line.                                     Under the ESA, the Service added the
                                                § 177.30, any party-at-interest may,                        For additional information about                   coquı́ llanero as an endangered species
                                                within 30 days of publication of the                     submitting comments, see Request for                  to the Federal List of Endangered and
                                                Federal Register Notice referenced                       Public Comments.                                      Threatened Wildlife in title 50 of the
                                                above, seek judicial review of this final                FOR FURTHER INFORMATION CONTACT: Jan                  Code of Federal Regulations on October
                                                determination before the Court of                        Zegarra at (787) 851–7297, or see                     4, 2012 (77 FR 60778). The 2012 final
                                                International Trade.                                     ADDRESSES for further methods of                      rule also designated critical habitat,
                                                Sincerely,                                               contact.                                              covering an area of 615 ac (249 ha), for
                                                                                                                                                               the species.
                                                Alice A. Kipel,                                          SUPPLEMENTARY INFORMATION:    We, the
                                                Executive Director, Regulations & Rulings                U.S. Fish and Wildlife Service,                          The recovery strategy for the coquı́
                                                Office of Trade.                                         announce the availability of the draft                llanero includes protection and
                                                [FR Doc. 2018–14632 Filed 7–6–18; 8:45 am]               recovery plan for the endangered coquı́               management of occupied habitat and
                                                BILLING CODE 9111–14–P                                   llanero (Eleutherodactylus juanariveroi).             suitable unoccupied habitat for
                                                                                                         The draft recovery plan includes                      potential future introductions, and
                                                                                                         specific recovery objectives and criteria             addresses immediate threats that led to
                                                DEPARTMENT OF THE INTERIOR                               that must be met in order for us to                   its listing. Because of stressors like
                                                                                                         remove this species from listing under                reduced geographic distribution, limited
                                                Fish and Wildlife Service                                the Endangered Species Act of 1973, as                dispersal capabilities, and the species’
                                                [FWS–R4–ES–2015–N040;                                    amended (ESA; 16 U.S.C. 1531 et seq.).                specialized breeding requirements, the
                                                FXES11130400000C2–156–FF04E00000]                        We request review and comment on this                 species is likely to have reduced
                                                                                                         draft recovery plan from local, State,                adaptive capacity. Therefore, in order to
                                                Endangered and Threatened Wildlife                       and Federal agencies and the public.                  meet the recovery goal of delisting, we
                                                and Plants; Draft Recovery Plan for                                                                            must increase the number of coquı́
                                                                                                         Background
                                                Coquı́ Llanero                                                                                                 llanero populations. This strategy seeks
                                                                                                            The coquı́ llanero is a small frog                 to safeguard the only existing coquı́
                                                AGENCY:    Fish and Wildlife Service,                    species endemic to Puerto Rico. In 2007,              llanero population in case the species
                                                Interior.                                                it was described as a new species of the              does not withstand or recover from a
                                                ACTION:  Notice of availability and                      genus Eleutherodactylus, family                       stochastic or catastrophic event.
                                                request for public comment.                              Leptodactylidae. Males measure
                                                                                                         approximately 0.58 in (14.7 mm), and                     Section 4(f) of the ESA requires the
                                                SUMMARY:   We, the U.S. Fish and                         females 0.62 in (15.8 mm). It has the                 development of recovery plans for listed
                                                Wildlife Service, announce the                           smallest clutch size of all                           species, unless such a plan would not
                                                availability of the draft recovery plan for              Eleutherodactylus species on Puerto                   promote the conservation of a particular
                                                the endangered coquı́ llanero, a frog                    Rico, and a high-frequency call. The                  species. Recovery plans describe actions
                                                endemic to Puerto Rico. The draft                        only population estimate available for                considered necessary for conservation of
                                                recovery plan includes specific recovery                 the coquı́ llanero indicates a mean                   the species, establish criteria for
                                                objectives and criteria that must be met                 population size of 473.3 ± 186                        downlisting or delisting, and estimate
                                                in order for us to remove this species                   individuals per ha (or 192 per ac; Rı́os-             time and cost for implementing recovery
                                                from listing under the Endangered                        López pers. comm. 2011).                             measures. Section 4(f) of the ESA also
                                                Species Act of 1973, as amended. We                         The coquı́ llanero is currently known              requires us to provide public notice and
                                                request review and comment on this                       to be restricted to one freshwater                    an opportunity for public review and
                                                draft recovery plan from local, State,                   herbaceous wetland in the municipality                comment during recovery plan
                                                and Federal agencies, and the public.                    of Toa Baja, Puerto Rico. The                         development. We will consider all
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                                                DATES: In order to be considered,                        herbaceous vegetation in the wetland                  information presented during a public
                                                comments on the draft recovery plan                      consists of Blechnum serrulatum                       comment period prior to approval of
                                                must be received on or before                            (toothed midsorus fern), Thelypteris                  each new or revised recovery plan. We
                                                September 7, 2018.                                       interrupta (willdenow’s maiden fern),                 and other Federal agencies will take
                                                ADDRESSES:                                               Sagittaria lancifolia (bulltongue                     these comments into account in the
                                                  Document availability: You may                         arrowhead), Cyperus sp. (flatsedges),                 course of implementing approved
                                                obtain a copy of this draft recovery plan                Eleocharis sp. (spike rushes), and vines              recovery plans.


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Document Created: 2018-07-07 00:41:40
Document Modified: 2018-07-07 00:41:40
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
ActionNotice of final determination.
DatesThis final determination was issued on July 2, 2018. A copy of the final determination is attached. Any party-at-interest may seek judicial review of this final determination within August 8, 2018.
ContactRoss M. Cunningham, Valuation and Special Programs Branch, Regulations and Rulings, Office of Trade, (202) 325-0034.
FR Citation83 FR 31764 

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