HQ 957267

May 16, 1995

CLA-2 R:C:M 957267 MMC

CATEGORY: Classification

TARIFF NO.: 7017

District Director

U.S. Customs Service

2nd and Chestnut Streets

Room 102

Philadelphia, PA 19106-2999

RE: Protest 1101-94-100601; Industrial glassware; Laboratory

glassware; EN 70.17; Nippon Kogasku (USA) Inc. v. United

States, C.J. Tower & Sons v. United States; HRLs 955424,

955015, 951094, 086214, 087359.

Dear District Director:

The following is our decision regarding Protest 1101-94-100601
concerning your action in classifying and assessing duty

on glass piping and fixtures under the Harmonized Tariff Schedule

of the United States (HTSUS). Protestant has provided invoices

and catalogs which contain pictures of the articles and an

explanation regarding their functions.

FACTS:

Protestant imports and produces a wide variety of glass

products in 3 different groups: chemical /pharmaceutical,

television/home appliances and optics/opto-electronics. The

articles subject to this protest belong to the

chemical/pharmaceutical group. The chemical /pharmaceutical

group is divided into 4 subgroups; chemical engineering,

laboratory, pharmaceutical packaging and tubing.

The chemical engineering subgroup contains two types of

glassware: components used to create the structure for different

chemical and pharmaceutical production processes and laboratory

equipment including beakers, receivers, flasks, funnels,

desiccators, petri dishes, water meter lenses, tubes and

capillaries for thermometers, cathode ray tubes and colored glass

tubing for neon lighting.

The laboratory subgroup glassware is used in laboratories,

environmental protection and industry and include; glass tubes

with interior metal coating for ozone generators, glass tubing

for laser sources and chromatography and special porous glass for

separation processes in biotechnology. The pharmaceutical

packing subgroup includes a variety of different ampules and

vials.

The tubing subgroup includes a special glass tubing used

for the manufacture of high quality primary packaging materials

such as vials, ampules and other glass containers for the

pharmaceutical and chemical industries; for the manufacture of

laboratory equipment and apparatus; for bottles used in

actinometer; and heat and corrosion-resistant flue liner systems

with neutralizers used to reduce chimney cross-sections, for

waste gas disposal and as lining systems for new chimneys.

This protest addresses specific articles of glassware

belonging to these subgroups. The subject articles are described

on submitted invoices as \"2 ST KOL 450 COLUMN SECTION

THERMOMETER BRANCH\" (thermometer branch), \"2 ST RO 450/1500/33

COLUMN SECTION\" (column section), \"1 ST ABS 450/200 COLUMN

ADAPTOR\" (column adaptor) and \"20 ST BEIL 450/A INTERLAYER FOR

BACKING FLANGES\" (backing flanges).

According to one of the submitted catalogs, entitled \"Glass

Components for Process Application\", individual glass components

are part of a modular construction system. This modular system

allows a variety of different processing systems to be built to

individual specifications. The catalog describes the thermometer

branch as a column component, the column section as a pipe, the

column adaptor as a closing cover and the backing flanges as

pieces for flange assembles for planing end bellows. All catalog

articles are made of borosilicate glass. Borosilicate glass is

the internationally standardized type of glass used for the

construction of plants and piping in the chemical and

pharmaceutical industries.

The subject merchandise was entered on January 25, 26, 27,

February 22 and March 9 1994, under heading 7020, HTSUS, which

provides for other glassware. On July 29, 1994, the entries

were liquidated under heading 7017, HTSUS, as laboratory

glassware. A protest was timely received on October 13, 1994.

ISSUE:

Are the subject glassware components laboratory glassware

classifiable under heading 7017, HTSUS, or industrial glassware

classifiable under heading 7020, HTSUS?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is

governed by the General Rules of Interpretation (GRIs). GRI 1,

HTSUS, states, in pertinent part, that for legal purposes,

classification shall be determined according to the terms of the

headings and any relative section or chapter notes. Chapter 70,

HTSUS, provides for glass and glassware. The headings under

consideration are:

7017 Laboratory, hygienic or pharmaceutical glassware, whether or

not graduated or calibrated

7020 Other articles of glass

Protestant argues that because the subject glassware is

principally used to produce chemicals and pharmaceuticals it is

general industrial glassware, not laboratory glassware.

In understanding the language of the headings the

Explanatory Notes (ENs) of the Harmonized Commodity Description

and Coding System may be utilized. The ENs, although not

dispositive, or legally binding, provide a commentary on the

scope of each heading of the HTSUS, and are generally indicative

of the proper interpretation of the HTSUS. See, T.D. 89-90, 54

Fed. Reg. 35127, 35128 (August 23, 1989). EN 70.17, pg. 940,

provides, in pertinent part, that:

This heading covers glass articles of a kind in general use

in laboratories (research, pharmaceutical, industrial,

etc.), including special bottles (gas washing, reagent,

Woulf\'s, etc.), special tubes (gas washing, drying,

condensation, filter, gas burettes, test-tubes, etc.),

stirrers, distilling flasks, graduated jars, culture flasks

(Kolle, Roux, etc.), burettes of all kinds, evaporating

dishes, volumetric flasks, special bell-jars and receivers

(vacuum, necked, etc.), special dropping bottles

(calibrated, etc.), retorts, crystallizing dishes, drying

cylinders, filter plates and discs, spoons, desiccators,

dialysers, adapters, condensers, receivers for distillation

apparatus, special funnels (with stop-cock, bulb-shaped

funnels, etc.), cylinders, crucibles, filter crucibles,

special flasks (conical, multi-necked, etc.), special spirit

burners, mortars, weighing boats, pipettes, vacuum vessels

of various specialized types (not falling in heading 96.17),

wash-bottles, stop-cocks, spatulas, jars (filtering,

precipitating, multinecked, etc.), muffles, crucible support

plates, microscope slides and cover glasses, etc\...

Articles of this heading may be graduated or calibrated.

They may be made of ordinary glass (particularly for

pharmaceutical or hygienic purposes), but laboratory

glassware is frequently of borosilicate glass, fused quartz

or other fused silica because of the greater chemical

stability and low coefficient of expansion of such glass.

The heading excludes:

\(a\) Containers for the conveyance or packing of goods

(heading 70.10); ordinary curved watch glasses sometimes

used in the laboratory (heading 70.15, see the Explanatory

Note to that heading); chemists\' special display bottles and

glassware of a kind used for industrial purposes (heading

70.20)\...

According to this EN, the class \"laboratory glassware\" includes

glassware used in any research, pharmaceutical or industrial

laboratory.

While the EN states the various kinds of laboratories

covered by heading 7017, HTSUS, it does not define the term

\"laboratory\" . Terms not defined in the HTSUS or in the ENs are

construed in accordance with their common and commercial meaning.

Nippon Kogasku (USA) Inc. v. United States, 69 CCPA 89, 673 F.2d

380 (1982). Common and commercial meaning may be determined by

consulting dictionaries, lexicons, scientific authorities and

other reliable sources. C.J. Tower & Sons v. United States, 69

CCPA 128, 673 F.2d 1268 (1982). The term \"laboratory\" is defined

in pertinent part, as \"1. A building or part of a building

equipped to conduct scientific experiments, tests,

investigations, etc., or to manufacture chemicals, medicines, or

the like.\" The Random House Dictionary of the English Language

(unabridged) 1973.

Based on this definition, we believe that an \"industrial

laboratory\" would include glassware used to create certain

scientific processes necessary for the production of chemical and

pharmaceutical products. The submitted literature indicates that

this glassware may be used to create a variety of scientific

processes including crystallization, extraction, distillation,

reaction and heat exchange. These processes are then combined

with various other production methods to create chemicals and

drugs.

Protestant argues that the subject glassware is excluded

from heading 7017 by exclusionary note (a) of EN 70.17, which

states in pertinent part that industrial glassware of heading

7020 is not classifiable under 7017. EN 70.20, pg. 945, states,

in pertinent part, that:

This heading covers glass articles (including glass parts of

articles) not covered by other headings of this Chapter or

of other Chapters of the Nomenclature.

These articles remain here even if combined with materials

other than glass, provided they retain the essential

character of glass articles. The heading includes:

\(1\) Industrial articles such as pots, bowls, cylinders or

discs for glazing hides or skins; protectors for safety or

other apparatus; greasing cups; thread guides; sight-holes

and gauge-glasses; S-shaped tubes; coils; guttering and

drains for corrosive products (often of fused quartz or

other fused silica); absorption drums for hydrochloric acid

and trickling columns\...

The glass articles described as industrial glassware for heading

7020, are general use articles. They may be used as components

for a variety of different productions. That is not the case for

the subject glass articles. The literature indicates that the

subject glassware is used specifically for the creation of

different scientific processes necessary in the production of

pharmaceuticals and chemicals. Therefore, heading 7020, HTSUS,

does not describe the subject glassware.

For other rulings concerning laboratory glassware see:

Headquarters Ruling letter (HRL) 955424 dated March 21, 1994, HRL

955015 dated January 27, 1994, HRL 951094 dated May 1, 1992, HRL

086214 dated April 12, 1990, and HRL 087359 dated August 8, 1990.

For the foregoing reasons, we find that the subject

glassware is classifiable under heading 7017, HTSUS, as

laboratory glassware. Classification to the 8 digit level must

be determined based on whether the articles are comprised of

fused quartz or silica glass, glass having the linear coefficient

of expansion not exceeding 5 x106 per Kelvin within a temperature

range of 0øC of to 300øC, or other kinds of glass.

HOLDING:

The subject glassware is classifiable under heading 7017,

HTSUS, as laboratory glassware. Classification to the 8 digit

level must be determined based on whether the articles are

comprised of fused quartz or silica glass, glass having the

linear coefficient of expansion not exceeding 5 x106 per Kelvin

within a temperature range of 0øC of to 300øC, or other kinds of

glass.

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, this decision 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 this decision must be accomplished prior to the

mailing of the decision. Sixty days from the date of this

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 to the public via the Diskette

Subscription Service, Freedom of Information Act and other public

access channels.

Sincerely,

John Durant, Director

Commercial Rulings Division