CLA-2 OT:RR:CTF:TCM H017669 HkP
Port Director
Port of San Juan
U.S. Customs and Border Protection
#1 La Puntilla Street, Room 214 San Juan, PR 00901
RE: Application for Further Review of Protest No. 4909-07-100028; glass bottles
Dear Port Director:
This is our decision regarding the Application for Further Review (“AFR”) of Protest No. 4909-07-100028, timely filed by counsel on behalf of Gerresheimer Glass, Inc. ((“Gerresheimer”), formerly, Kimble Glass, Inc.), concerning the classification of certain merchandise under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The merchandise at issue is 80 ml bottles made to the specifications of a Gerresheimer customer that manufactures and distributes health care and medical equipment. The customer is the only purchaser of these bottles, which are used only with the customer’s equipment. Samples of the bottles have been provided for our examination.
The glass bottles made by Gerresheimer are made from soda (sodium carbonate), lime (calcium carbonate) and silica (sand) (some of the usual components of USP Type III glass) but are not considered to be Type III glass by Gerresheimer because decolorizing chemicals normally allowed in USP Type III glass are reduced or absent in this particular glass formulation. Protestant explains that this special formulation allows the light source (LED) from the customer’s equipment to pass through the glass without being absorbed. The bottles are manufactured by machines that pour molten glass into moulds and use compressed air to finish the bottle form.
Based on the customer’s requirements, the top of the bottle has a diameter and a finish that will maintain a vacuum and accept a closure that will self-seal after a needle is inserted into it and withdrawn (however, the closing device is not imported with the bottle and is not at issue). The outer diameter of the bottle as well as the diameter and height of the neck of the bottle is designed to fit particular equipment. The inside bottom of the bottle is consistently flat because the products with which it will be used require “a consistent thickness of the sensor” (the sensor is not imported with the bottle). For the outside bottom of the bottle, the focal length is consistent because the LED in the equipment with which it will be used will go to the sensor in the bottle and then back to the detector in the equipment. The bottom of the bottle is of a certain thickness and the average wall thickness is 3 mm. According to Protestant, the wall thickness of ordinary pharmaceutical and laboratory glassware is, on average, 1.1 – 1.5 mm and the increased wall thickness of the bottles at issue helps to prevent breakage during conveyance.
After importation the bottles are sold by Gerresheimer to the customer who then runs the bottles through a production process at its production facility. This includes adding a sensor to the bottom of each bottle and filling the bottles with one of five described chemical media that are used in testing blood for certain pathogens. After the bottles are filled, a crimp-on cap with a plastic pull-off top is affixed to each bottle as well as a label. The bottles are then marketed and sold to hospitals and medical laboratories under the customer’s proprietary product name. Gerresheimer’s customer packs and ships the filled and sealed bottles to its customers. Once the chemical media in the bottles have been used to perform blood testing, the used media and the bottle are discarded after a single use.
The merchandise was entered on various dates between January 10, 2006, and November 20, 2006, under subheading 7010.90.0540, HTSUSA, which provides for: “Carboys, bottles … and other containers, of glass, of a kind used for the conveyance or packing of goods; …: Other: Serum bottles, vials and other pharmaceutical containers: Of a capacity not exceeding 0.15 liter.” These entries were later rate advanced by U.S. Customs and Border Protection (“CBP”) and liquidated under subheading 7017.90.5000, HTSUSA, which provides for: “Laboratory, hygienic or pharmaceutical glassware, whether or not graduated or calibrated: Other: Other.” The entries were liquidated between December 15, 2006, and January 26, 2007. A protest was timely filed on June 12, 2007, in which Protestant alleged that the correct classification for the subject merchandise was in subheading 7010.90.0540, HTSUSA.
ISSUE:
What is the correct classification of the bottles?
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed, within 90 days of liquidation of the first entry for entries made before December 18, 2004, and within 180 days of liquidation of the first entry for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further Review of Protest No. 4909-07-100028 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 because the decision against which the protest was filed is alleged to be inconsistent with a decision made at a port with respect to the same or substantially similar merchandise. Specifically, the glass bottles currently at issue were previously the subject of a Protest at another port and CBP allowed classification in subheading 7010.90.0540, HTSUSA.
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The HTSUS provisions under consideration are as follows:
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:
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7010.90 Other:
7010.90.05 Serum bottles, vials and other pharmaceutical containers …..
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7010.90.0540 Of a capacity not exceeding 0.15 liters …
7017 Laboratory, hygienic or pharmaceutical glassware, whether or not graduated or calibrated:
* * *
7017.90 Other:
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7017.90.5000 Other …..
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding nor dispositive, 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.
CBP has previously considered the nature of the goods provided for in headings 7010 and 7017, HTSUS. See, for example, Headquarters Ruling Letter (“HQ”) H005541, dated July 5, 2007, the analysis in which is hereby incorporated by reference. With regard to heading 7017, HTSUS, we found that goods of this heading are themselves used for pharmaceutical or medical purposes. The Explanatory Notes to heading 7017 lists irrigators, nozzles for syringes and enemas, urinals, bed pans, chamber pots, spittoons, cupping-glasses, eye-baths, inhalers and tongue depressors as exemplars of the goods of the heading. Based on our interpretation of the scope of heading 7017, HTSUS, as expressed in HQ H005541, we find that, in the instant case, the bottles are not provided for in that heading because they are not themselves used for pharmaceutical or medical purposes but are used as containers for goods used for such purposes.
With regard to heading 7010, HTSUS, the U.S. Custom’s Service (now, CBP) has identified specific characteristics as indicative, though not conclusive, of the class of containers of a kind used for the packing of goods. See Treasury Decision (T.D.) 96-7 (November 29, 1995), 30 Cust. B. & Dec. No. 30. These characteristics relate to containers of all shapes and sizes:
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in which the ultimate purchaser’s primary expectation is to discard the container after the conveyed or packed goods are used;
sold from the importer to a wholesaler/distributor who then packs them with goods;
sold in an environment of sale that features the goods packed in the jar and not the jar itself;
used to commercially convey foodstuffs, beverages, oils, meat extracts, etc.;
capable of being used in the hot packing process; and
recognized in the trade as used primarily to pack and convey goods to a consumer who then discards the container after this initial use.
In HQ H005541, CBP applied these characteristics together with the descriptions provided in EN 70.10 to the glass articles at issue in that ruling and found that the articles belonged to the class “containers of a kind used for the conveyance or packing of goods”.
EN 70.10 explains, in relevant part, that heading 7010, HTSUS:
[C]overs 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:
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.
These articles, formerly produced by blowing, are now almost invariably manufactured by machines which automatically feed molten glass into moulds where the finished articles are formed by the action of compressed air. They are usually made of ordinary glass (colourless or coloured) although some bottles (e.g., for perfumes) may be made of lead crystal, and certain large carboys are made of fused quartz or other fused silica.
The above-mentioned containers are generally designed for some type of closure; these may take the form of ordinary stoppers … or special devices …
These containers remain in this heading …, provided that they are not of a kind used as laboratory glassware.
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The heading does not include:
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(e) Laboratory, hygienic or pharmaceutical glassware (heading 70.17).
In this case, the bottles at issue are made to exacting specifications required by a medical distributor, who is the sole purchaser of the bottles. The bottles are made from a combination of soda, lime and silica (“ordinary glass” ingredients) in a manufacturing process described by EN 70.10. They are filled and closed with a “special device” before they are packed and shipped. After the contents of the bottles have been used once, both the contents and the bottles are discarded. Based on the foregoing, we find that the bottles at issue are “of a kind” used for the packing or conveyance of goods, specifically chemical or pharmaceutical products as mentioned in Part (A) of EN 70.10, and are classified in heading 7010, HTSUS.
HOLDING:
By application of GRI 1, the glass bottles at issue are classified in heading 7010, HTSUS. They are specifically provided for in subheading 7010.90.0540, HTSUSA, which provides for: “Carboys, bottles … and other containers, of glass, of a kind used for the conveyance or packing of goods; …: Other: Serum bottles, vials and other pharmaceutical containers: Of a capacity not exceeding 0.15 liter.” The 2006 column one, general rate of duty is Free.
Since reclassification of the merchandise as indicated above will result in a lower rate of duty than claimed, you are instructed to allow the protest in full. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter.
No later than 60 days from the date of this letter, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP homepage on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division