HQ H017699

June 9, 2008

**CLA-2 OT:RR:CTF:TCM** H017669 HkP

**CATEGORY:** Classification

**TARIFF NO.:** 7010.90.0540

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[^1]) 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that will self-seal after a needle is inserted into it and withdrawn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:

> \* \* \*

7010.90 Other:

7010.90.05 Serum bottles, vials and other pharmaceutical containers
.....

> \* \* \*

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:

> \* \* \*

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]{.underline} Treasury Decision (T.D.) 96-7 (November 29,
1995), [30 Cust. B. & Dec. No. 30]{.underline}. These characteristics
relate to containers of all shapes and sizes:[^2]

> \* \* \*

2.  in which the ultimate purchaser's primary expectation is to discard
    the container after the conveyed or packed goods are used;

3.  sold from the importer to a wholesaler/distributor who then packs
    them with goods;

4.  sold in an environment of sale that features the goods packed in the
    jar and not the jar itself;

5.  used to commercially convey foodstuffs, beverages, oils, meat
    extracts, etc.;

6.  capable of being used in the hot packing process; and

7.  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:

(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.

> 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.
>
> \* \* \*
>
> The heading **does not include**:
>
> \* \* \*
>
> \(e\) 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]{.underline} (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

[^1]: "Type III" is a designation made by the United States Pharmacopeia
    -- National Formulary (USP-NF) concerning a type of soda lime glass
    approved by the USP-NF for use in pharmaceutical packaging. In
    general, Soda Lime glass contains 60-75% silica, 12-18% soda, and
    5-12% lime. The USP-FN has also recognized two other types of soda
    lime glass as suitable for pharmaceutical packaging: (1) Type II
    de-alkalized soda-lime glass, which has higher levels of sodium
    hydroxide and calcium oxide. It is more resistant to leaching than
    Type III and can be used for products that remain below pH7 for
    their shelf life; and (2) Type NP soda-lime glass, which is a
    general purpose glass that is used for non-parenteral applications
    where chemical durability and heat shock are not factors. [See
    generally]{.underline}, www.coleparmer.com, "Glass standards". More
    generally, Soda Lime glass is used to manufacture bottles, jars,
    everyday drinking glasses and window glass, among other things
    (www.lenntech.com/Glass.htm).

[^2]: Omitted from this list is the first enumerated criterion
    concerning physical characteristics, which stated: "generally having
    a large opening, a short neck (if any) and as a rule, a lip or
    flange to hold the lid or cap, made of ordinary glass (colorless or
    colored) and manufactured by machines which automatically feed
    molten glass into molds where the finished articles are formed by
    the action of compressed air". Based on industry comments, the U.S.
    Custom's Service concluded that this criterion was too narrow for
    the entire class because the entire class included four different
    types of containers: (A) Carboys, demijohns, bottles, and similar
    containers of all sizes and shapes; (B) Jars, pots and similar
    containers; (C) Ampoules; and (D) Tubular containers and similar
    containers. Based on the expressed concerns, Customs agreed that
    physical description together with descriptions found in the ENs are
    indicative but not conclusive of glass articles belonging to the
    class "containers of a kind used for the conveyance or packing of
    goods." Treasury Decision (T.D.) 96-7 (November 29, 1995), [30 Cust.
    B. & Dec. No. 30]{.underline}.