HQ 968112

June 8, 2006

**CLA-2 RR:CTF:TCM** 968112 CAM

**CATEGORY:** Classification

**TARIFF NO.:** 7017.90.5000

Port Director

U.S. Customs and Border Protection

\# 1 La Puntilla St.

U.S. Customhouse

San Juan, PR 00901

**RE:** Protest 4909-05-100021; 250 ml. Amber Glass Bottles with 3-Neck
Finish

Dear Port Director:

The following is our decision regarding Protest 4909-95-100021, which
concerns the classification of 250 ml. amber glass bottles with a 3-neck
finish under the Harmonized Tariff Schedule of the United States
(HTSUS).

**FACTS:**

The subject merchandise consists of 250 ml. amber glass bottles with a
3-neck finish. The merchandise was entered on September 20, 2004 under
subheading 7010.90.0540, HTSUS, which provides for, in pertinent part,
bottles, vials, and other containers of glass, of a kind used for the
conveyance or packaging of goods: other: serum bottles, vials, and other
pharmaceutical containers of a capacity not exceeding 0.15 liters.

The entry was liquidated on February 4, 2005 under subheading
7017.90.5000, HTSUS, as laboratory, hygienic, or pharmaceutical
glassware whether or not graduated or calibrated; other; other. The
protest was timely filed on April 26, 2005.

On protest, the importer asks Customs and Border Protection (CBP) to
consider subheading 7010.90.0530, HTSUS, which provides for, in relevant
part, bottles, vials, and other containers of glass, of a kind used for
the conveyance or packaging of goods: other: serum bottles, vials, and
other pharmaceutical containers of a capacity exceeding 0.15 liter but
not exceeding 0.33 liters.

**ISSUE:**

Whether certain 250 ml. amber glass bottles with a 3-neck finish are
classifiable as glass bottles used for the "conveyance or packaging of
goods," or as "laboratory, hygienic, or

pharmaceutical glassware," under the HTSUS?

**LAW AND ANALYSIS:**

Classification of merchandise under the HTSUS is in accordance with the
General Rules of Interpretation (GRIs). GRI 1 provides that
classification shall be determined according to the terms of the
headings 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 require otherwise, then CBP may apply
the remaining GRIs.

The Harmonized Commodity Description and Coding System Explanatory Notes
(ENs) constitute the official interpretation of the HTSUS. While not
legally binding nor dispositive, the ENs provide a commentary on the
scope of each heading of the HTSUS and, generally, are indicative of the
proper interpretation of these headings. [See]{.underline} T.D. 89-80,
54 FR 35127, 35128 (August 23, 1989).

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 packaging of
goods; preserving jars of glass; stoppers, lids and other closures, of
glass:

> \* \* \*

90. Other:

    5.  Serum bottles, vials and other pharmaceutical containers

> \* \* \*

7010.90.0530 Of a capacity exceeding 0.15 liter but not exceeding 0.33
liter

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

> \* \* \*

7017.90 Other

> \* \* \*

7017.90.5000 Other

The importer argues that the merchandise should be classified under
heading 7010, HTSUS, because the intended use for the bottles are to
"pack and convey" drugs. In support of this contention, the importer
provided a letter from Baxter Healthcare Corp. (Baxter) stating that it
used the merchandise in its "Fill & Pack process" for the anesthesia it
manufactures. The importer also cites to NY F84840, dated April 19,
2000, asserting without explanation that the merchandise classified in
that ruling under subheading 7010.94.0500, HTSUS, was "a product with
similar use."

Merchandise within the terms of heading of 7010, HTSUS, is classified by
the merchandise's principal use. When merchandise is classifiable
according to its principal use, then Additional United States Rule of
Interpretation 1(a), HTSUS, applies, which states:

> \(a\) 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 which the imported goods belong, and the
> controlling use is the principal use.

Typically, the following factors are indicative, but not conclusive, of
a good's principal use: (1) the general physical characteristics; (2)
the expectations of ultimate purchaser; (3) the channels of trade; (4)
the environment of the sale; (5) whether the use is in the same manner
as that which defines the class of article; (6) the economic
practicality of using the article; and (7) the recognition in the trade
of this use. [See]{.underline} [Kraft, Inc. v. United
States]{.underline}, 16 CIT 483 (1992); [G Heileman Brewing Co. v.
United States]{.underline}, 14 CIT 614 (1990); [United States v.
Carborundum Company]{.underline}, 63 CCPA 98, C.A.D 1172, 536 F.2d 373
(1976), [cert denied]{.underline}, 428 U.S. 979 (1976).

Treasury Decision (T.D.) 96-7 provides additional criteria that are
indicative, but also not conclusive, of the classification for
containers of glass of a kind used for the conveyance or packaging of
goods. The criteria from T.D. 96-7 considers whether:

1\. \[The container\] \[g\]enerally \[has\] a large opening, a short
neck (if any) and as a rule, a lip or flange to hold the lid or cap,
\[is\] made of ordinary glass (colourless or coloured) and \[is\]
manufactured by machines which automatically feed molten glass into
moulds where the finished articles are formed by the action of
compressed air;

2\. The ultimate purchaser\'s primary expectation is to discard/recycle
the container after the conveyed or packed goods are used;

3\. \[The container is\] \[s\]old from the importer to a
wholesaler/distributor who then packs the container with goods;

4\. \[The container is\] \[s\]old in an environment of sale that
features the goods packed in the container and not the jar itself;

5\. \[The container is\] \[u\]sed to commercially convey foodstuffs,
beverages, oils, meat extracts, etc.;

6\. \[The container is\] \[c\]apable of being used in the hot packing
process; and 7. \[The container is\] \[r\]ecognized in the trade as used
primarily to pack and convey goods to a consumer who then discards the
container after this initial use.

The ENs for heading 7010, HTSUS, state that the heading covers "glass
containers of the kind commonly used commercially for the conveyance or
packing." The key term in the ENs is "commercial conveyance," but that
term is not defined. A tariff term that is not defined in the HTSUS or
in the ENs is construed in accordance with its common and commercial
meaning. [Nippon Kogaku (USA) Inc. v. United States]{.underline}, 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]{.underline}, 69 CCPA 128, 673 F.2d 1268 (1982).

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 (1973), p. 295, and Webster\'s New
World Dictionary (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.

In this case, the information before CBP does not support classification
under heading 7010, HTSUS. The information provided by the importer in
the protest does not provide a sufficient basis to determine the
principal use of the merchandise. The importer relies on the letter from
Baxter and the ruling from NY F84840 to suggest classification under
subheading 7010.90.0530, HTSUS, but neither establishes the principal
use of the subject merchandise.

Specifically, the letter from Baxter does not establish the principal
use for three reasons. First, the letter is only indicative of the
actual use by Baxter -- not the principal use of the glass bottles. In
particular, the letter by Baxter does not establish that the use cited
is the primary use of the class or kind of glass bottles in the United
States at the time of importation. Second, the letter only demonstrates
that the glass bottles are used in the "Fill & Pack process." The
letter, however, does not state that the merchandise is then carried
from one place to another to be bought or sold in a "commercial
conveyance." Third, the letter does not address the majority of the
aforementioned criteria for determining principal use from the various
Court of International Trade decisions or T.D. 96-7. Among the relevant
factors that cannot be gleaned from Baxter's letter include, but are not
limited to, whether the ultimate purchaser would discard or recycle the
bottle, the environment of the sale, the channels of trade, and whether
the container is used commercially.

In addition, the importer's application of ruling NY F84840 to the glass
bottles is unpersuasive. Initially we note, that the importer provides
no explanation of how the facts in this situation are similar to that
ruling. In NY F84840, the size and the shape of the bottles were
different from the bottles in this protest. Further, the description of
the use of the bottles in the letter provided by Baxter is
distinguishable from the use described in NY F84840. Baxter stated that
the bottles were used in the "Fill & Pack process, " whereas the bottles
in NY F84840 were used to "pack and convey" drugs. In other words, the
bottles in NY F84840, were definitely used to convey the product but,
here, Baxter's letter does not indicate that any actual conveyance
occurs. As a result, the ruling from NY F84840 is not applicable to the
subject merchandise of this protest.

The importer has failed to allege sufficient facts to demonstrate that
the principal use of the glass bottles is of a kind used for the
conveyance or packaging of goods. The available information, however,
does support classification under heading 7017, HTSUS, because the
subject merchandise meets the terms of that heading. In fact, the
subject merchandise is provided for eo nomine in heading 7017, HTSUS,
which includes pharmaceutical glassware. The subject merchandise is
pharmaceutical glassware because it is a glass bottle that a
pharmaceutical company uses in the manufacture of anesthesia.

**HOLDING:**

For the foregoing reasons, the 250 ml. amber glass bottles with a 3-neck
finish are classifiable under heading 7017, HTSUS, and, specifically
under subheading 7017.90.5000, HTSUS, which provides for: laboratory,
hygienic, or pharmaceutical glassware whether or not graduated or
calibrated; other; other.

This protest should be denied. In accordance with the Protest/Petition
Processing Handbook (CIS HB, January 2002, pp. 18 and 21), 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 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 make the decision available to CBP personnel, and to the
public on the CBP Home Page 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 & Trade Facilitation Division