CLA-2 CO:R:C:M 954681 KCC
District Director
U.S. Customs Service
610 South Canal Street
Chicago, Illinois 60607
RE: Protest No. 3901-93-100533; 2 cc Univial; EN 70.10; ampoule;
7010.90.05; serum bottle
Dear District Director:
This is in response to Protest No. 3901-93-100533, which
pertains to the tariff classification of a 2 cc Univial under the
Harmonized Tariff Schedule of the United States ("HTSUS"). A
sample was submitted for examination.
FACTS:
The glass article under consideration is a 2 cc Univial
("Univial"). The entry of the Univial was liquidated on March 19,
1993, under subheading 7010.10.00, HTSUS, as an ampoule. In a
protest timely filed on March 26, 1993, the protestant contends
that the Univial is classified under subheading 7010.90.05, HTSUS,
as a serum bottle.
The protestant states that the Univial is made from a mold,
and not obtained from a drawn glass tube. Therefore, pursuant to
Explanatory Note (EN) 70.10 of the Harmonized Commodity Description
and Coding System, the protestant contends that the Univial is not
classifiable as an ampoule under subheading 7010.10.00, HTSUS, but
as a serum bottle under subheading 7010.90.05, HTSUS.
ISSUE:
Is the 2 cc Univial classified as an ampoule under subheading
7010.10.00, HTSUS, or as a serum bottle under subheading
7010.90.05, HTSUS?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is governed
by the General Rules of Interpretation (GRI's). GRI 1, HTSUS,
states, in part, that "for legal purposes, classification shall be
determined according to terms of the headings and any relative
section or chapter notes...." The competing subheadings are:
7010 Carboys, bottles, flasks, jars, pots, vials, ampoules
and other containers, of glass, of a kind used for the
conveyance or packing of goods; preserving jars of glass;
stoppers, lids and other closures, of glass...
7010.10.00 Ampoules
7010.90.05 Other...Serum bottles, vials and other
pharmaceutical containers.
In understanding the language of the headings of the HTSUS,
the Harmonized Commodity Description and Coding System (HCDCS)
Explanatory Notes (ENs) may be utilized. The ENs, although not
dispositive, are to be used to determine the proper interpretation
of the HTSUS. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
EN 70.10 (pgs. 933-934) states that heading 7010, HTSUS,
"...covers all glass containers of the kinds commonly used
commercially for the conveyance or packing of liquids or of solid
products (powders, granules, etc.). They include...
(C) Ampoules, usually obtained from a drawn glass tube, and
intended to serve, after sealing, as containers for serums or
other pharmaceutical products, or for liquid fuels (e.g.,
ampoules of petrol for cigarette lighters), chemical products,
etc.
(D) Tubular containers and similar containers generally obtained
from lamp-worked glass tubes or by blowing, for the conveyance
or packing of pharmaceutical products or similar uses."
EN 70.10 states that the ampoules are "...usually obtained
from a drawn glass tube....(emphasis added)." EN 70.10 does not
state that the ampoule must be made from a drawn glass tube.
Therefore, there is no requirement that an ampoule must be made
from a drawn glass tube. An ampoule may be made from a mold, as
is the circumstance with the Univial under consideration.
The form of the Univial corresponds exactly to the common form
of an ampoule found in the glass industry. The upper portion of
the Univial, i.e., a crimp top designed for sealing, is unique to
an ampoule. A serum bottle or vial does not have this feature.
We note that both ampoules and serum bottles/vials are used to hold
serums or other pharmaceutical products. However, an ampoule will
ultimately be used to contain a serum or other pharmaceutical. It
is unique and different from an ordinary serum bottle/vial because
it has a special upper form which will permit sealing. The
physical characteristics of the Univial are that of an ampoule
classifiable under subheading 7010.10.00, HTSUS.
HOLDING:
The 2 cc Univial is classified as an ampoule under subheading
7010.10.00, HTSUS.
The protest is 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, with
the Customs Form 19, 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