> HQ 965053
>
> March 14, 2002
>
> CLA-2 RR:CR:GC 965053 AML
>
> **CATEGORY:** Classification
>
> **TARIFF NO.:** 7017.90.50
>
> Port Director
>
> United States Customs Service
>
> 2^nd^ and Chestnut Streets
>
> Philadelphia, PA 19106
>
> **RE:** Protest No. 1101-01-100116; glass vials used with
>
> chromatography equipment
>
> Dear Port Director:
>
> The following is our decision regarding Protest 1101-01-100116, dated
> March 21, 2001, filed by Agilent Technologies, Inc., against your
> classification of various glass vials used with chromatography
> equipment under the Harmonized Tariff Schedule of the United States
> (HTSUS).
>
> **FACTS:**
>
> The articles at issue are crimp top, round- and tapered-bottomed glass
> vials. The protestant provided the following technical information
> concerning the articles:
>
> These vials are described in the Chemical Analysis Consumables and
> Accessories 1998-1999 catalogue, as follows:
>
> 5180-0844 VIALS, MIC 100UL 500/PK is a crimp top glass vial, clear
> tapered, 100 ul.
>
> 5180-0841 is a clear round bottom, 300 ul vial.
>
> 5183-4623 is a clear wide opening crimp/snap top vial, 2 ml.
>
> 5182-9697 is a CE vial, wide opening.
>
> The vials are neither graduated nor calibrated. They are used to

contain injectable liquids for chromatography applications.

A copy of an industry catalogue describing the articles was also
provided.

The protestant contends that the glass vials should be classified under
subheading 7010.94.05, HTSUS, which provides for carboys, bottles,
flasks, jars, pots, vials, ampoules and other containers, of glass, of a
kind used for the conveyance or packing of goods; etc., other, serum
bottle, vials and other pharmaceutical containers.

The articles were entered in February, 2000, and the entries were
liquidated on December 22 and 29, 2000, and January 5, 2001, with
classification under subheading 7017.90.50, HTSUS, which provides for
laboratory, hygienic or pharmaceutical glassware whether or not
graduated or calibrated, other. The protest was filed on March 21, 2001.

**ISSUE:**

Whether the glass vials for use with chromatography equipment are
classified as glass containers for the conveyance or packing of goods
under heading 7010, HTSUS, or as laboratory glassware under heading
7017, HTSUS?

**LAW AND ANALYSIS:**

Initially we note that the protest was timely filed (*i.e*., within 90
days after but not before the notice of liquidation; see 19 U.S.C. 1514
(c)(3)(A)) and the matter is protestable (see 19 U.S.C. 1514 (a)(2) and
(5)).

Classification of goods under the HTSUS is governed by the General Rules
of Interpretation (GRIs), taken in order. GRI 1 provides that
classification shall be determined according to the terms of the
headings and any relative section or chapter notes.

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:

7010.94 Not exceeding 0.15 liter:

7010.94.05 Serum bottles, vials and other pharmaceutical containers.

> \* \* \*
>
> 7017 Laboratory, hygienic or pharmaceutical glassware, whether or not
> graduated or
>
> calibrated:

7017.90 Other:

7017.90.50 Other.

The Harmonized Commodity Description and Coding System Explanatory Notes
(ENs) constitute the official interpretation of the Harmonized System.
While not legally binding on the contracting parties, and therefore not
dispositive, the ENs provide a commentary on the scope of each heading
of the Harmonized System and are thus useful in ascertaining the
classification of merchandise. Customs believes the ENs should always be
consulted. See T.D. 89‑80. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

In support of its position that the subject glassware is classifiable
under subheading 7010.94.05, HTSUS, the protestant makes reference to
the ENs for heading 7017, HTSUS, and states that those ENs do not
describe the subject goods. The protestant further alleges that because
heading 7010, HTSUS, specifically mentions "vials" in the superior
heading that the heading should be considered an *eo nomine* provision.
Finally, the protestant alleges that Port Decision DD 813486, dated
August 11, 1995, supports its position and is dispositive of the issues
presented.

Contrary to the assertions of the protestant, the provision in heading
7010, HTSUS, for containers \"of a kind used\" for the conveyance or
packing of goods is a \"principal use\" provision (*Group Italglass
U.S.A., Inc. v. United States*, 17 CIT 226 (1993)). If an article is
classifiable according to the use of the class or kind of goods to which
it belongs, as is true of this provision, Additional U.S. Rule of
Interpretation 1(a), HTSUS, provides that:

> In the absence of special language or context which otherwise
> requires\-- (a) 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\[.\]

In other words, the article\'s principal use in the United States at the
time of importation determines whether it is classifiable within a
particular class or kind. Principal use is distinguished from actual
use; a tariff classification controlled by the latter is satisfied only
if such use is intended at the time of importation, the goods are so
used and proof thereof is furnished within 3 years after the date the
goods are entered (U.S. Additional Note 1(b); 19 C.F.R. §10.131 -
10.139).

In sum, heading 7010, HTSUS, is a "use" provision, not an *eo nomine*
provision.

Without determining the issue of principal versus actual use, we note
that the only evidence provided by the protestant demonstrates that the
articles are used with chromatography equipment.

The McGraw Hill Multimedia Encyclopedia of Science and Technology
(Version 2.0, © 1995) defines "chromatography" as:

> A physical method of separation in which the components of a mixture
> of substances are separated from each other by differences in their
> distribution between two phases, one of which is stationary
> (stationary phase) while the other (mobile phase) moves through it in
> a definite direction. The substances must interact with the stationary
> phase to be retained and separated by it.

Heading 7010, HTSUS, provides for, *inter alia*, bottles, vials,
ampoules, and other containers, of glass, of a kind used for the
conveyance or packing of goods. The ENs to heading 7010, HTSUS, page
1165-6, state that the heading does not include:

\(e\) Laboratory, hygienic or pharmaceutical glassware (heading 70.17).

The ENs to heading 7010, HTSUS, further provide that "\[t\]his heading
covers all glass containers of the kinds commonly used commercially for
the conveyance or packing of liquids or of solid products (powders,
granules, etc.)." Customs has previously determined that the key phrase
in the quoted material is \"commonly used commercially for the
conveyance or packing\" of liquids or solid products. The root of the
word "commonly" is "common," and that is defined as widespread,
prevalent; occurring frequently or habitually, usual; most widely known,
ordinary. [Webster's II New Riverside University Dictionary]{.underline}
(1988)), p. 287. The root word of \"commercially\" is "commerce," and
that is described as the exchange or buying and selling of commodities.
[The Random House Dictionary of the English Language]{.underline}
(1973), p. 295, and [Webster\'s New World Dictionary]{.underline} (3rd
Coll. Ed.) (1988), p. 280. The root word of \"conveyance\" is "convey,"
which is described as to carry, bring or take from one place to another;
transport; bear. [Id.]{.underline} at p. 320 and p. 305, respectively.

The subject vials are not commonly used to convey articles in commerce;
they are used with chromatography equipment.

The ENs to heading 7017, HTSUS, page 1172, provide that:

The heading excludes:

\(a\) Containers for the conveyance or packing of goods (heading
70.10)\[.\]

In Headquarters Ruling Letter (HQ) 084710, dated July 31, 1989, and its
reconsideration in HQ 086214, dated April 12, 1990, Customs dealt with
the classification of similar articles. Specifically, Customs dealt with
the classification of unmarked screw threaded flat-bottomed tubes that
were used for the conveyance of biological media. These rulings
classified these types of tubes within heading 7017, HTSUS, as
laboratory glassware, and rejected classification within heading 7010,
HTSUS. This conclusion was based on the fact that both headings 7010 and
7017, HTSUS, are use provisions (see U.S. Additional Note 1, *supra*).

Customs found that this type of article is principally used to hold
biological cultures or other scientific material within the laboratory
and not for the packing or conveying of goods. HQ 086214 stated the
following regarding the use of similar articles:

> \[t\]his 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.

This continues to be our position and we find these rulings to be
instructive in resolving the classification issue in this case. See
also, HQ 087359, dated August 8, 1990.

We have reviewed DD 813486 and agree with its determination. However,
the ruling buttresses the conclusions reached herein rather than
supporting the position of the protestant. The articles in DD 813486
"are small glass vials used in packaging . . . diagnostic reagents" that
will be sold "to hospitals and laboratories." The ruling reached the
proper conclusion -- the vials were used commercially to convey goods
from the manufacturer to the buyer. Their use requires classification
under heading 7010, HTSUS. The protestant misplaced its reliance upon DD
813486.

Heading 7017, HTSUS, provides for laboratory glassware. The ENs to
heading 7017, page 1171-2, state that this heading covers glass articles
of a kind in general use in laboratories, including special tubes. The
articles at issue satisfy the terms of this heading. That the articles
are neither graduated nor calibrated has no bearing on this
determination. The subject articles are not commonly used commercially
to convey articles in the marketplace. Rather, they are identical in all
material aspects to the glassware in the above cases. In addition, the
vials are especially distinguished as being laboratory glassware because
of their use with chromatography equipment.

**HOLDING:**

The glass vials are principally used as other laboratory glassware and
are classified in subheading 7017.90.50, HTSUS.

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, you are to mail this decision, together with
the Customs Form 19, to the protestant no later than 60 days from the
date of this letter. Any reliquidation of the entry or entries in
accordance with the decision must be accomplished prior to mailing the
decision. Sixty (60) days from the date of the decision, the Office of
Regulations and Rulings will make the decision available to Customs
personnel, and to the public on the Customs Home Page on the World Wide
Web at *www.customs.gov*, by means of the Freedom of Information Act,
and other methods of public distribution.

> Sincerely,
>
> John Durant, Director
>
> Commercial Rulings Division