HQ 951094

May 1, 1992

CLA-2 CO:R:C:M 951094 NLP

CATEGORY: Classification

TARIFF NO.: 7017.90.00

District Director

United States Customs Service

La Puntilla #1

Old San Juan, PR 00903

RE: Protest No. 4909-91-100196; PVC coated vials; laboratory

glassware; glassware containers of a kind used for the

conveyance or packing of goods; subheading 7010.90.05;

Explanatory Note(e) to heading 70.10; Explanatory Note

70.17; HRL 084710; HRL 086214; HRL 087359

Dear District Director:

The following is our decision regarding the Protest and

Request For Further Review No. 4909-91-100196, dated December 10,

1991\. At issue is the classification of polyvinyl chloride (PVC)

coated vials under the Harmonized Tariff Schedule of the United

States (HTSUS).

FACTS:

The articles at issue are clear glass, flat-bottomed and

cylinder-styled vials with screw threaded mouths. The vials are

coated with PVC and the thickness of this coating is 0.9 mm. The

protestant states that the vials are actually used for the

packing of Dalacin Topical solution. The vials are sold with

their contents on a retail basis; for example, they are sold to

drugstores.

Upon importation, your office liquidated the PVC coated

vials in subheading 7017.90.00, HTSUS, which provides for

laboratory, hygienic or pharmaceutical glassware, whether or not

graduated or calibrated, other.

The protestant contends that the PVC coated vials should be

classified in subheading 7010.90.05, 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.

ISSUE:

Are the PVC coated vials classified as laboratory glassware

in heading 7017, HTSUS, or as glass containers for the conveyance

or packing of goods in heading 7010, HTSUS.

LAW AND ANALYSIS:

Classification of goods under the HTSUS is governed by the

General Rules of Interpretation (GRI\'s), 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.

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. Harmonized Commodity

Description and Coding System (HCDCS) Explanatory Note(e) to

heading 7010, page 934, states that the heading does not include:

\(e\) Laboratory, hygienic or pharmaceutical glassware

(heading 70.17).

Similarly, the HCDCS Explanatory Notes to heading 7017, page

940, provide that:

The heading excludes:

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

(heading 70.10); etc\....

Therefore, the issue is whether the instant articles are

laboratory glassware.

The protestant argues that the vials are classified in

heading 7010, HTSUS. The protestant contends that the vials are

the packing containers for Dalacin Topical solution and they are

sold with their contents on a retail basis. The protestant also

contends that since the vials are disposable, they cannot be

classified as laboratory glassware.

In Headquarters Ruling Letter (HRL) 084710, dated July 31,

1989, and its reconsideration in HRL 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. Consequently, the

heading under which the subject merchandise was classified was

controlled by the use in the United States at, or immediately

prior to, the date of importation of goods of the class or kind

to which the subject merchandise belongs. The controlling use

was the principal use\--the use which exceeds any other use.

Additional U.S. Rules of Interpretation 1 (a), HTSUS.

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.

HRL 086214 stated the following regarding the use of these tubes:

\...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.

This continues to be our position and we find these rulings to be

instructive in resolving the classification issue in this case.

See also, HRL 087359, dated August 8, 1990.

Heading 7017, HTSUS, provides for laboratory glassware. The

HCDCS Explanatory Notes to heading 7017, page 940, 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. 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 PVC coating. This coating

would be utilized for certain laboratory tests in which the vials

would need the coating for heating/cooling and for light

protection. Moreover, the fact that the vials are disposable

does not have any bearing on the present issue. Thus, the PVC

coated vials are principally used as laboratory glassware and are

classified in subheading 7017.90.00, HTSUS.

HOLDING:

The protest should be denied in full. A copy of this

decision should be attached to the Customs Form 19 and provided

to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director

Commercial Rulings Division