CLA-2 R:C:M 957267 MMC
District Director
U.S. Customs Service
2nd and Chestnut Streets
Room 102
Philadelphia, PA 19106-2999
RE: Protest 1101-94-100601; Industrial glassware; Laboratory
glassware; EN 70.17; Nippon Kogasku (USA) Inc. v. United
States, C.J. Tower & Sons v. United States; HRLs 955424,
955015, 951094, 086214, 087359.
Dear District Director:
The following is our decision regarding Protest 1101-94-100601 concerning your action in classifying and assessing duty
on glass piping and fixtures under the Harmonized Tariff Schedule
of the United States (HTSUS). Protestant has provided invoices
and catalogs which contain pictures of the articles and an
explanation regarding their functions.
FACTS:
Protestant imports and produces a wide variety of glass
products in 3 different groups: chemical /pharmaceutical,
television/home appliances and optics/opto-electronics. The
articles subject to this protest belong to the
chemical/pharmaceutical group. The chemical /pharmaceutical
group is divided into 4 subgroups; chemical engineering,
laboratory, pharmaceutical packaging and tubing.
The chemical engineering subgroup contains two types of
glassware: components used to create the structure for different
chemical and pharmaceutical production processes and laboratory
equipment including beakers, receivers, flasks, funnels,
desiccators, petri dishes, water meter lenses, tubes and
capillaries for thermometers, cathode ray tubes and colored glass
tubing for neon lighting.
The laboratory subgroup glassware is used in laboratories,
environmental protection and industry and include; glass tubes
with interior metal coating for ozone generators, glass tubing
for laser sources and chromatography and special porous glass for
separation processes in biotechnology. The pharmaceutical
packing subgroup includes a variety of different ampules and
vials.
The tubing subgroup includes a special glass tubing used
for the manufacture of high quality primary packaging materials
such as vials, ampules and other glass containers for the
pharmaceutical and chemical industries; for the manufacture of
laboratory equipment and apparatus; for bottles used in
actinometer; and heat and corrosion-resistant flue liner systems
with neutralizers used to reduce chimney cross-sections, for
waste gas disposal and as lining systems for new chimneys.
This protest addresses specific articles of glassware
belonging to these subgroups. The subject articles are described
on submitted invoices as "2 ST KOL 450 COLUMN SECTION
THERMOMETER BRANCH" (thermometer branch), "2 ST RO 450/1500/33
COLUMN SECTION" (column section), "1 ST ABS 450/200 COLUMN
ADAPTOR" (column adaptor) and "20 ST BEIL 450/A INTERLAYER FOR
BACKING FLANGES" (backing flanges).
According to one of the submitted catalogs, entitled "Glass
Components for Process Application", individual glass components
are part of a modular construction system. This modular system
allows a variety of different processing systems to be built to
individual specifications. The catalog describes the thermometer
branch as a column component, the column section as a pipe, the
column adaptor as a closing cover and the backing flanges as
pieces for flange assembles for planing end bellows. All catalog
articles are made of borosilicate glass. Borosilicate glass is
the internationally standardized type of glass used for the
construction of plants and piping in the chemical and
pharmaceutical industries.
The subject merchandise was entered on January 25, 26, 27,
February 22 and March 9 1994, under heading 7020, HTSUS, which
provides for other glassware. On July 29, 1994, the entries
were liquidated under heading 7017, HTSUS, as laboratory
glassware. A protest was timely received on October 13, 1994.
ISSUE:
Are the subject glassware components laboratory glassware
classifiable under heading 7017, HTSUS, or industrial glassware
classifiable under heading 7020, HTSUS?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is
governed by the General Rules of Interpretation (GRIs). GRI 1,
HTSUS, states, in pertinent part, that for legal purposes,
classification shall be determined according to the terms of the
headings and any relative section or chapter notes. Chapter 70,
HTSUS, provides for glass and glassware. The headings under
consideration are:
7017 Laboratory, hygienic or pharmaceutical glassware, whether or
not graduated or calibrated
7020 Other articles of glass
Protestant argues that because the subject glassware is
principally used to produce chemicals and pharmaceuticals it is
general industrial glassware, not laboratory glassware.
In understanding the language of the headings the
Explanatory Notes (ENs) of the Harmonized Commodity Description
and Coding System may be utilized. The ENs, although not
dispositive, or legally binding, provide a commentary on the
scope of each heading of the HTSUS, and are generally indicative
of the proper interpretation of the HTSUS. See, T.D. 89-90, 54
Fed. Reg. 35127, 35128 (August 23, 1989). EN 70.17, pg. 940,
provides, in pertinent part, that:
This heading covers glass articles of a kind in general use
in laboratories (research, pharmaceutical, industrial,
etc.), including special bottles (gas washing, reagent,
Woulf's, etc.), special tubes (gas washing, drying,
condensation, filter, gas burettes, test-tubes, etc.),
stirrers, distilling flasks, graduated jars, culture flasks
(Kolle, Roux, etc.), burettes of all kinds, evaporating
dishes, volumetric flasks, special bell-jars and receivers
(vacuum, necked, etc.), special dropping bottles
(calibrated, etc.), retorts, crystallizing dishes, drying
cylinders, filter plates and discs, spoons, desiccators,
dialysers, adapters, condensers, receivers for distillation
apparatus, special funnels (with stop-cock, bulb-shaped
funnels, etc.), cylinders, crucibles, filter crucibles,
special flasks (conical, multi-necked, etc.), special spirit
burners, mortars, weighing boats, pipettes, vacuum vessels
of various specialized types (not falling in heading 96.17),
wash-bottles, stop-cocks, spatulas, jars (filtering,
precipitating, multinecked, etc.), muffles, crucible support
plates, microscope slides and cover glasses, etc...
Articles of this heading may be graduated or calibrated.
They may be made of ordinary glass (particularly for
pharmaceutical or hygienic purposes), but laboratory
glassware is frequently of borosilicate glass, fused quartz
or other fused silica because of the greater chemical
stability and low coefficient of expansion of such glass.
The heading excludes:
(a) Containers for the conveyance or packing of goods
(heading 70.10); ordinary curved watch glasses sometimes
used in the laboratory (heading 70.15, see the Explanatory
Note to that heading); chemists' special display bottles and
glassware of a kind used for industrial purposes (heading
70.20)...
According to this EN, the class "laboratory glassware" includes
glassware used in any research, pharmaceutical or industrial
laboratory.
While the EN states the various kinds of laboratories
covered by heading 7017, HTSUS, it does not define the term
"laboratory" . Terms not defined in the HTSUS or in the ENs are
construed in accordance with their common and commercial meaning.
Nippon Kogasku (USA) Inc. v. United States, 69 CCPA 89, 673 F.2d
380 (1982). Common and commercial meaning may be determined by
consulting dictionaries, lexicons, scientific authorities and
other reliable sources. C.J. Tower & Sons v. United States, 69
CCPA 128, 673 F.2d 1268 (1982). The term "laboratory" is defined
in pertinent part, as "1. A building or part of a building
equipped to conduct scientific experiments, tests,
investigations, etc., or to manufacture chemicals, medicines, or
the like." The Random House Dictionary of the English Language
(unabridged) 1973.
Based on this definition, we believe that an "industrial
laboratory" would include glassware used to create certain
scientific processes necessary for the production of chemical and
pharmaceutical products. The submitted literature indicates that
this glassware may be used to create a variety of scientific
processes including crystallization, extraction, distillation,
reaction and heat exchange. These processes are then combined
with various other production methods to create chemicals and
drugs.
Protestant argues that the subject glassware is excluded
from heading 7017 by exclusionary note (a) of EN 70.17, which
states in pertinent part that industrial glassware of heading
7020 is not classifiable under 7017. EN 70.20, pg. 945, states,
in pertinent part, that:
This heading covers glass articles (including glass parts of
articles) not covered by other headings of this Chapter or
of other Chapters of the Nomenclature.
These articles remain here even if combined with materials
other than glass, provided they retain the essential
character of glass articles. The heading includes:
(1) Industrial articles such as pots, bowls, cylinders or
discs for glazing hides or skins; protectors for safety or
other apparatus; greasing cups; thread guides; sight-holes
and gauge-glasses; S-shaped tubes; coils; guttering and
drains for corrosive products (often of fused quartz or
other fused silica); absorption drums for hydrochloric acid
and trickling columns...
The glass articles described as industrial glassware for heading
7020, are general use articles. They may be used as components
for a variety of different productions. That is not the case for
the subject glass articles. The literature indicates that the
subject glassware is used specifically for the creation of
different scientific processes necessary in the production of
pharmaceuticals and chemicals. Therefore, heading 7020, HTSUS,
does not describe the subject glassware.
For other rulings concerning laboratory glassware see:
Headquarters Ruling letter (HRL) 955424 dated March 21, 1994, HRL
955015 dated January 27, 1994, HRL 951094 dated May 1, 1992, HRL
086214 dated April 12, 1990, and HRL 087359 dated August 8, 1990.
For the foregoing reasons, we find that the subject
glassware is classifiable under heading 7017, HTSUS, as
laboratory glassware. Classification to the 8 digit level must
be determined based on whether the articles are comprised of
fused quartz or silica glass, glass having the linear coefficient
of expansion not exceeding 5 x106 per Kelvin within a temperature
range of 0øC of to 300øC, or other kinds of glass.
HOLDING:
The subject glassware is classifiable under heading 7017,
HTSUS, as laboratory glassware. Classification to the 8 digit
level must be determined based on whether the articles are
comprised of fused quartz or silica glass, glass having the
linear coefficient of expansion not exceeding 5 x106 per Kelvin
within a temperature range of 0øC of to 300øC, or other kinds of
glass.
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 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 the
mailing of the decision. 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 Rulings Module in ACS and to the public via the Diskette
Subscription Service, Freedom of Information Act and other public
access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division