CLA-2 CO:R:C:M 951094 NLP
District Director
United States Customs Service
La Puntilla #1
Old San Juan, PR 00903
RE: Protest No. 4909-91-100196; PVC coated vials; laboratory
glassware; glassware containers of a kind used for the
conveyance or packing of goods; subheading 7010.90.05;
Explanatory Note(e) to heading 70.10; Explanatory Note
70.17; HRL 084710; HRL 086214; HRL 087359
Dear District Director:
The following is our decision regarding the Protest and
Request For Further Review No. 4909-91-100196, dated December 10,
1991. At issue is the classification of polyvinyl chloride (PVC)
coated vials under the Harmonized Tariff Schedule of the United
States (HTSUS).
FACTS:
The articles at issue are clear glass, flat-bottomed and
cylinder-styled vials with screw threaded mouths. The vials are
coated with PVC and the thickness of this coating is 0.9 mm. The
protestant states that the vials are actually used for the
packing of Dalacin Topical solution. The vials are sold with
their contents on a retail basis; for example, they are sold to
drugstores.
Upon importation, your office liquidated the PVC coated
vials in subheading 7017.90.00, HTSUS, which provides for
laboratory, hygienic or pharmaceutical glassware, whether or not
graduated or calibrated, other.
The protestant contends that the PVC coated vials should be
classified in subheading 7010.90.05, HTSUS, which provides for
carboys, bottles, flasks, jars, pots, vials, ampoules and other
containers, of glass, of a kind used for the conveyance or
packing of goods; etc..., other, serum bottle, vials and other
pharmaceutical containers.
ISSUE:
Are the PVC coated vials classified as laboratory glassware
in heading 7017, HTSUS, or as glass containers for the conveyance
or packing of goods in heading 7010, HTSUS.
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the
General Rules of Interpretation (GRI's), taken in order. GRI 1
provides that classification shall be determined according to the
terms of the headings and any relative section or chapter notes.
Heading 7010, HTSUS, provides for, inter alia, bottles,
vials, ampoules, and other containers, of glass, of a kind used
for the conveyance or packing of goods. Harmonized Commodity
Description and Coding System (HCDCS) Explanatory Note(e) to
heading 7010, page 934, states that the heading does not include:
(e) Laboratory, hygienic or pharmaceutical glassware
(heading 70.17).
Similarly, the HCDCS Explanatory Notes to heading 7017, page
940, provide that:
The heading excludes:
(a) Containers for the conveyance or packing of goods
(heading 70.10); etc....
Therefore, the issue is whether the instant articles are
laboratory glassware.
The protestant argues that the vials are classified in
heading 7010, HTSUS. The protestant contends that the vials are
the packing containers for Dalacin Topical solution and they are
sold with their contents on a retail basis. The protestant also
contends that since the vials are disposable, they cannot be
classified as laboratory glassware.
In Headquarters Ruling Letter (HRL) 084710, dated July 31,
1989, and its reconsideration in HRL 086214, dated April 12,
1990, Customs dealt with the classification of similar articles.
Specifically, Customs dealt with the classification of unmarked
screw threaded flat-bottomed tubes that were used for the
conveyance of biological media. These rulings classified these
types of tubes within heading 7017, HTSUS, as laboratory
glassware, and rejected classification within heading 7010,
HTSUS. This conclusion was based on the fact that both headings
7010 and 7017, HTSUS, are use provisions. Consequently, the
heading under which the subject merchandise was classified was
controlled by the use in the United States at, or immediately
prior to, the date of importation of goods of the class or kind
to which the subject merchandise belongs. The controlling use
was the principal use--the use which exceeds any other use.
Additional U.S. Rules of Interpretation 1 (a), HTSUS.
Customs found that this type of article is principally used
to hold biological cultures or other scientific material within
the laboratory and not for the packing or conveying of goods.
HRL 086214 stated the following regarding the use of these tubes:
...this product is the standard tube or vial used to hold
biological cultures or other scientific material within a
laboratory. In addition, it is common knowledge, which is
supported by an examination of the laboratory at Customs,
which reveals that many glassware tubes used for laboratory
purposes, are flat-bottomed.
This continues to be our position and we find these rulings to be
instructive in resolving the classification issue in this case.
See also, HRL 087359, dated August 8, 1990.
Heading 7017, HTSUS, provides for laboratory glassware. The
HCDCS Explanatory Notes to heading 7017, page 940, state that
this heading covers glass articles of a kind in general use in
laboratories, including special tubes. The articles at issue
satisfy the terms of this heading. They are identical in all
material aspects to the glassware in the above cases. In
addition, the vials are especially distinguished as being
laboratory glassware because of their PVC coating. This coating
would be utilized for certain laboratory tests in which the vials
would need the coating for heating/cooling and for light
protection. Moreover, the fact that the vials are disposable
does not have any bearing on the present issue. Thus, the PVC
coated vials are principally used as laboratory glassware and are
classified in subheading 7017.90.00, HTSUS.
HOLDING:
The protest should be denied in full. 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.
Sincerely,
John Durant, Director
Commercial Rulings Division