CLA-2 CO:R:C:M 955424 RFA
Regional Commissioner of Customs
c/o Protest and Control Section
Customs House
6 World Trade Center
Room 761
New York, NY 10048-0945
RE: Protest 1001-93-104821; Glass Vials; Accessory to
Spectrophotometer; heading 9027; EN 90.27;
Dear District Director:
The following is our decision regarding Protest 1001-93-
104821, which concerns the classification of glass vials under
the Harmonized Tariff Schedule of the United States (HTSUS). The
entry of the subject merchandise was liquidated on April 30,
1993. The protest was timely filed on July 22, 1993.
FACTS:
The subject merchandise, 20 ml. glass vials, model HS-100-
101, are borosilicate, clear standard. Based upon the catalog
description, the glass vials are designed for use in the
laboratory. The importer claims that the glass vials are an
accessory to a spectrophotometer.
The merchandise was entered under subheading 7010.90.50,
HTSUS, as glass containers for the packing and conveyance of
goods. The entry was liquidated under subheading 7017.90.00,
HTSUS, as other laboratory glassware.
The subheadings under consideration are as follows:
7010.90.50: Carboys, bottles, flasks, jars, pots, vials,
ampoules and other containers, of glass, of a
kind used for the conveyance or packing of
goods . . . : [o]ther: [o]ther containers
(with or without their closures) . . . .
Goods classifiable under this provision have a general,
column one free rate of duty.
7017.90.00 Laboratory, hygienic or pharmaceutical
glassware, whether or not graduated or
calibrated: [o]ther . . . .
Goods classifiable under this provision have a general,
column one rate of duty of 8.4 percent ad valorem.
9027.90.44 Instruments and apparatus for physical or
chemical analysis (for example, polarimeters,
refractometers, spectrometers, gas or smoke
analysis apparatus); instruments and
apparatus for measuring or checking
viscosity, porosity, expansion, surface
tension or the like; . . . microtomes; parts
and accessories thereof: [m]icrotomes; parts
and accessories: parts and accessories:
[o]ther. . . .
Goods classifiable under this provision have a general,
column one rate of duty of 4.9 percent ad valorem.
ISSUE:
Whether the subject glass vials are classifiable as
laboratory glassware or as an accessory to spectrophotometers
under the HTSUS?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with 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.
According to the information provided, the glass vials are
to be used in a laboratory setting. Laboratory glassware is
provided for under heading 7017, HTSUS. However, the protestant
claims that the glass vials are specifically made for use with
spectrophotometers and should therefore be classified as a part
or an accessory of the spectrophotometers under heading 9027,
HTSUS.
The Harmonized Commodity Description and Coding System
Explanatory Notes (EN) constitute the Customs Cooperation
Council's official interpretation of the HTSUS. While not
legally binding, the ENs provide a commentary on the scope of
each heading of the HTSUS and are generally indicative of the
proper interpretation of these headings. See T.D. 89-90, 54
Fed.Reg. 35127, 35128 (August 23, 1989). EN 90.27, page 1518,
provides guidance when:
"[c]lassification of goods which are potentially within
the scope both of this heading and of heading 70.17
(laboratory glassware).
In these cases, classification is governed by the
following considerations:
(1) If an article has the essential character of
glassware (whether or not graduated or calibrated,
and whether or not with subsidiary stoppers,
connections, etc., of rubber, etc.), it is not to
be classified in this heading even if it is
normally known as a particular instrument or
apparatus.
(2) In general, instruments normally cease to have the
essential character of glassware when they consist
partly of glass but are mainly of other materials,
or if they consist of glass parts incorporated or
permanently fixed in frames, mounts, cases or the
like.
(3) The combination of glass parts with measuring
instruments (e.g., pressure gauges, thermometers)
may, in practice, provide grounds for considering
such instruments as proper to this heading.
The subject merchandise has the essential character of
glassware because the glass vials are not incorporated or
permanently fixed in frames, mounts, cases or the like, nor do
they contain measuring instruments such as pressure gauges or
thermometers. Furthermore, Note 1(e) to Chapter 90 states that
Chapter 90 does not cover goods of heading 7017, HTSUS. Based
upon Note 1(e) to Chapter 90 and the guidance set forth in EN
90.27, we find that classification of the glassware under heading
9027, HTSUS, is precluded. The subject merchandise are glass
articles of a kind used in laboratories which are provided for
under heading 7017, HTSUS.
HOLDING:
For the foregoing reasons, the glass vials are classifiable
under subheading 7017.90.00, which provides for: "[l]aboratory,
hygienic or pharmaceutical glassware, whether or not graduated or
calibrated: [o]ther . . . ."
The protest should be DENIED. In accordance with Section
3A(11)(b) of Customs Directive 099 3550-065, dated August 4,
1993, Subject: Revised Protest Directive, this decision, together
with the Customs Form 19, 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 the decision
must be accomplished prior to mailing of the decision. Sixty
days from the date of the decision the Office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS and the public
via the Diskette Subscription Service, Lexis, Freedom of
Information Act and other public access channels.
Sincerely,
John Durant, Director