CLA-2 CO:R:C:M 955015 KC
District Director
U.S. Customs Service
1 La Pontile Street
Old San Juan, Puerto Rico 00901
RE: Protest No. 4909-9-100054; PVC coated bottles; 7017.90.00;
other laboratory, hygienic or pharmaceutical glassware;
principal use; Additional U.S. Rule of Interpretation 1(a);
EN 70.10; EN 70.17; HRL 951094; HRL 087359; HRL 086214; HRL
084710
Dear District Director:
This is in response to the Application for Further Review of
Protest No. 4909-93-100054, which pertains to the tariff
classification of PVC coated bottles under the Harmonized Tariff
Schedule of the United States (HTSUS).
FACTS:
The merchandise under consideration is polyvinyl chloride
coated bottles (PVC coated bottles), style # 52414. The PVC coated
bottles are manufactured in a fully automated process which
involves a two step moulding operation. After the bottles are
gradually cooled to room temperature, they are dipped into a PVC
bath. Finally, the PVC coated bottles are slowly reheated to 550
degrees Celsius to reduce internal tensions in the glass and for
homogenization purposes.
The entries of the PVC coated bottles were liquidated on
February 26, 1993, under subheading 7017.90.00, HTSUS, as other
laboratory, hygienic or pharmaceutical glassware. In a protest
timely filed on May 18, 1993, the protestant contends that the PVC
coated bottles are classified under subheading 7010.90.05, HTSUS,
as serum bottles, vials and other pharmaceutical containers.
The competing subheadings are:
7010.90.05 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...Other...Serum bottles, vials
and other pharmaceutical containers.
7017.90.00 Laboratory, hygienic or pharmaceutical glassware,
whether or not graduated or calibrated...Other....
ISSUE:
Are the PVC coated bottles classified under subheading
7010.90.05, HTSUS, as serum bottles, vials and other pharmaceutical
containers, or under 7017.90.00, HTSUS, as other laboratory,
hygienic or pharmaceutical glassware?
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 the terms of the headings and any relative
section or chapter notes...."
Headings 7010 and 7017, HTSUS, are both considered use
provisions. "A tariff classification controlled by use (other than
actual use) is to be determined in accordance with the use in the
United States at, or immediately prior to, the date of importation,
of goods of that class or kind to which the imported goods belong,
and the controlling use is the principal use." Additional U.S.
Rule of Interpretation 1(a), HTSUS.
In understanding the language of the HTSUS, the Harmonized
Commodity Description and Coding System 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 (August 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:
(A) Carboys, demijohns, bottles (including syphon vases), phials
and similar containers, of all shapes and sizes, used as
containers for chemical products (acids, etc.), beverages,
oils, meat extracts, perfumery preparations, pharmaceutical
products, inks, glues, etc...
The above-mentioned containers are generally designed
for some type of closure; these may take the form of ordinary
stoppers (of cork, glass, etc.), glass balls, metal caps,
screw caps (of metal or plastics), or special devices (e.g.,
for beer bottles, bottles for aerated waters, soda water
syphons, etc.)....
(B) Jar, pots and similar containers for the conveyance or packing
of certain foodstuffs (condiments, sauces, fruit, preserves,
honey, etc.), cosmetic or toilet preparations (face creams,
hair lotions, etc.), pharmaceutical products (ointments,
etc.), polishes, cleaning preparations, etc....
(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.
The heading does not include:...
(e) Laboratory, hygienic or pharmaceutical glassware (heading
70.17).
EN 70.17 (pg. 940) states that heading 70.17, HTSUS,
"...covers glass articles of a kind in general use in laboratories
(research, pharmaceutical, industrial, etc.)...." EN 70.17 goes
on to list numerous articles which fall within the class or kind
of glassware classifiable under heading 7017, HTSUS. These
articles included such items as special bottles (gas washing,
reagent, Woulf's, etc.), graduated jars, culture flasks, special
bell-jars and receivers, special dropping bottles (calibrated,
etc.) and many more articles. EN 70.17 specifically excludes
"Containers for the conveyance or packing of goods (heading
70.10)...."
We note that Headquarters Ruling Letter (HRL) 951094 dated
May 1, 1992, classified PVC coated cylinder-styled vials with screw
threaded mouths under subheading 7017.90.00, HTSUS, as other
laboratory, hygienic or pharmaceutical glassware. HRL 951094 found
that the class or kind of PVC coated vials was principally used to
hold biological cultures or other scientific materials within the
laboratory and that the vials were not for the packing or conveying
of goods. HRL 951094 stated that:
...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.
See also, HRL 087359 dated August 8, 1990, HRL 086214 dated April
12, 1990, and HRL 084710 July 31, 1989, which classified unmarked
screw threaded flat-bottomed tubes that were used for the
conveyance of biological media under heading 7017.90.00, HTSUS.
We need to determine the principal use of the class or kind
of PVC coated bottles under consideration. The Court of
International Trade in Group Italglass U.S.A., Inc. v. United
States, CIT Slip Op. 93-208 (Nov. 1, 1993), recently stated: "The
Court stresses that it is the principal use of the class or kind
of goods to which the imports belong and not the principal use of
the specific imports that is controlling under the Rules of
Interpretations." (emphasis in original). Additionally, in
discussing principal use the Court stated:
...evidence of the actual use of the imported goods could,
depending upon the quantum of proof, have some minimal
relevant probative value on the issue of principal use.
Similarly, evidence of the principal use of the specific
imports is relevant to the principal use of the class or kind
of goods to which the imported goods belong....
We are of the opinion that the PVC coated bottles under
consideration are of the class or kind of glass bottle classifiable
under subheading 7010.90.05, HTSUS. Based on the information
provided, the principal use of class or kind of PVC coated bottles
at issue is for the commercial conveyance or packing of
pharmaceutical products. The protestant states that it sells all
of its PVC coated bottles to a pharmaceutical manufacturer.
Moreover, the protestant's market research shows that its primary
competitor sells most of their bottles (20-30 million) to 5 to 10
other pharmaceutical manufacturers for the commercial packing and
conveying of pharmaceutical products.
The PVC coated bottles at issue are a different class or kind
of PVC coated glassware from the PVC coated vials in HRL 951094.
Although both glass bottle and vial are PVC coated, they have
different characteristics and are used for different purposes. The
PVC coated bottles opening or mouth is designed to be fitted with
a non-removable, crimp-on top. The protestant states that a crimp
top bottle of this type is specifically designed to serve as a
disposable commercial container for pharmaceutical products, and
not as a vial for laboratory cultures. The protestant contends
that a laboratory could undertake to seal or reseal a crimp top on
the bottle, but they would have to use a hand crimping device. The
protestant states that the method of hand sealing is not the
principal method for sealing the PVC coated bottles; pharmaceutical
manufacturers use
unique automated equipment for sealing crimp top bottles which
costs hundreds of thousands of dollars.
The PVC coating for the bottles under consideration is
different than the PVC coatings of the bottles in HRL 951094.
In HRL 951094, the PVC coating was for heating/cooling or for light
protection during certain laboratory tests. The PVC coating in
this case is to protect the user from flying glass in the event
that the glass bottle breaks. If dropped the bottles without a PVC
coating are likely to shatter due to the pressurized gas contained
within.
Additionally, the PVC coated bottles are similar to the
exemplars listed in EN 70.10. They are designed as containers for
commercially marketed pharmaceutical products. They are not the
type of bottles principally used for laboratory experimentation as
listed in EN 70.17. EN 70.17 lists exemplars of glassware which
are designed for specialized uses within a laboratory. EN 70.17
specifically excludes containers for the conveyance or packing of
goods. Therefore, pursuant to the PVC coated bottle's principal
use as a bottle for the commercial conveyance or packing of
pharmaceutical products and the ENs, the PVC coated bottles are
classified under subheading 7010.90.05, HTSUS, as serum bottles,
vials and other pharmaceutical containers.
HOLDING:
The PVC coated bottles, style # 52414, are classified under
subheading 7010.90.05, HTSUS, as serum bottles, vials and other
pharmaceutical containers. This protest should be granted in full.
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