HQ 955015

January 27, 1994

CLA-2 CO:R:C:M 955015 KC

CATEGORY: Classification

TARIFF NO.: 7010.90.05

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