CLA-2 RR:CTF:TCM 968112 CAM
U.S. Customs and Border Protection
# 1 La Puntilla St.
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).
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.
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 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:
* * *
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:
* * *
* * *
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 Kraft, Inc. v. United States, 16 CIT 483 (1992); G Heileman Brewing Co. v. United States, 14 CIT 614 (1990); United States v. Carborundum Company, 63 CCPA 98, C.A.D 1172, 536 F.2d 373 (1976), cert denied, 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, 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 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. 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.
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.
Myles B. Harmon, Director
Commercial & Trade Facilitation Division