CLA-2 OT:RR:CTF:TCM H005541 HkP
Leonard M. Shambon, Esq.
3619 Legation Street, NW
Washington, D.C. 20015
RE: Revocation of HQ 968112; PVC-coated glass bottles
Dear Mr. Shambon:
This is in response to your request for reconsideration of Headquarters Ruling Letter (“HQ”) 968112, issued on June 8, 2006, concerning the classification of certain merchandise under the Harmonized Tariff Schedule of the United States (“HTSUS”). At issue is the correct classification of PVC (polyvinylchloride) – coated bottles made of “Type III” (also, “Type 3”) glass imported by your client Saint-Gobain Desjonqueres (“SGD”). U.S. Customs and Border Protection (“CBP”) classified this merchandise under heading 7017, HTSUS, as laboratory, hygienic or pharmaceutical glassware. It is your contention that the bottles are properly classified in heading 7010, HTSUS, as glass bottles of a kind used for the conveyance or packing of goods. For the reasons set forth in this ruling, we hereby revoke HQ 968112.
Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. §1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation was published on May 9, 2007, in the Customs Bulletin, Volume 41, No. 20. No comments were received in response to this notice.
The merchandise at issue is 250 ml bottles made of transparent amber colored Type III glass, also known as Soda Lime glass. In HQ 968112, CBP incorrectly described this product as having a “3-neck finish” because this was the description provided in section 7 of the Application for Further Review (AFR) of the Protest submitted to CBP. Further, no sample of the product was provided to CBP. You have now told us that the correct product description is: “Amber glass type 3, Neck finish AER32”, and have provided a sample of the bottle for our inspection. We are now aware that the bottle actually has one neck, which you say is specifically designed to allow the bottle to be sealed with a non-removable crimp top consisting of an aluminum seal with a spray head device of plastic parts. The spray head device is subsequently used in a specially designed vaporizer to administer anesthetic. However, the top is not under consideration here.
Generally, Type III/Soda Lime glass is used to manufacture bottles, jars, everyday drinking glasses and window glass, among other things (www.lenntech.com/ Glass.htm). In addition, Soda Lime glass is one of the glass types approved by the United States Pharmacopeia – National Formulary (USP-NF) for use in pharmaceutical packaging.
In our previous ruling on this merchandise, CBP found that your client’s broker failed to allege sufficient facts to demonstrate that the principal use of the class of glass bottles to which the subject merchandise belongs is for the conveyance or packing of goods. In addition, CBP found that the bottle was provided for, eo nomine, in heading 7017, HTSUS, because “it is a glass bottle that a pharmaceutical company uses in the manufacture of anesthesia.” You have now provided CBP with additional information about your merchandise. We have considered your arguments and, based on the new information provided to CBP, we now conclude that the previous classification of your merchandise under heading 7017, HTSUS, was incorrect. Our reasoning is set forth in the “Law and Analysis” section below.
What is the correct classification of the PVC-coated glass bottles?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule 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 otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
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 packing of goods; preserving jars of glass; stoppers, lids and other closures, of glass:
* * *
7010.90.05 Serum bottles, vials and other pharmaceutical containers …..
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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:
* * *
* * *
7017.90.5000 Other …..
As an initial matter, we note that the PVC-coated glass bottles are composite goods, consisting as they do, of the different materials of glass and plastic. Therefore, they cannot be classified according to GRI 1. GRI 3(b) directs that composite goods consisting of different materials shall be classified as if they consisted of the material or component which gives them their essential character. After examining the merchandise, we conclude that its essential character is the glass bottle because it gives the merchandise its shape, weighs more than the PVC component, and by its color protects the product it contains from ultraviolet (“UV”) light. The PVC coating is merely a safety coating that reduces slippage and breakage of the bottle.
CBP previously classified the bottles at issue in heading 7017, HTSUS, as pharmaceutical glassware because they are glass bottles used by a pharmaceutical company. However, based on the sample and additional information provided to CBP and after consulting the ENs to heading 7017, HTSUS, we are now of the view that the bottles are not described in heading 7017, HTSUS.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally
indicative of the proper interpretation of these headings. See T.D. 89-80. EN 70.17 explains:
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.), …
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The expression “hygienic or pharmaceutical glassware” refers to articles of general use not requiring the services of a practitioner. The heading therefore covers, inter alia, irrigators, nozzles (for syringes, enemas, etc.), urinals, bed pans, chamber pots, spittoons, cupping-glasses, breast relievers … eye-baths, inhalers and tongue depressors. …
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:
Containers for the conveyance or packing of goods (heading 70.10)[.]
* * *
Generally, a “pharmaceutical” is a drug or medicine that is prepared or dispensed in pharmacies and used in medical treatment. In that sense, any bottle that holds a pharmaceutical may generally be considered “pharmaceutical glassware”. However, when we compare the examples of hygienic or pharmaceutical glassware provided in the ENs with the sample of your merchandise, we find that they are dissimilar. EN 70.17 describes items themselves used for pharmaceutical or medical purposes; your merchandise will contain goods to be used for medical purposes. For this reason, we conclude that your merchandise is outside the scope of heading 7017, HTSUS.
It is your view that the correct classification of this merchandise is under heading 7010, HTSUS, as bottles of glass of a kind used for the conveyance or packing of goods. In HQ 968112, CBP applied specific identifiable characteristics set forth in Treasury Decision (T.D.) 96-7 (November 29, 1995), 30 Cust. B. & Dec. No. 30, which CBP found to be indicative, though not conclusive, of the class of containers of glass of a kind used for the conveyance or packing of goods. However, in applying T.D. 96-7, we failed to take into account the U.S. Customs Service’s (now, CBP) response to a comment submitted by industry that the first criterion enumerated, physical characteristics of the class, was too narrow for the entire class because the entire class included four different types of containers: (A) Carboys, demijohns, bottles, and similar containers of all sizes and shapes; (B) Jars, pots and similar containers; (C) Ampoules; and (D) Tubular containers and similar containers. Based on the expressed concerns, Customs agreed that physical description together with descriptions found in the ENs are indicative but not conclusive of glass articles belonging to the class “containers of a kind used for the conveyance or packing of goods”.
EN 70.10 explains, in relevant part, that heading 7010, HTSUS:
[C]overs 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:
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.
These articles, formerly produced by blowing, are now almost invariably manufactured by machines which automatically feed molten glass into moulds where the finished articles are formed by the action of compressed air. They are usually made of ordinary glass (colourless or coloured) although some bottles (e.g., for perfumes) may be made of lead crystal, and certain large carboys are made of fused quartz or other fused silica.
The above-mentioned containers are generally designed for some type of closure; these may take the form of ordinary stoppers … or special devices …
These containers remain in this heading …, provided that they are not of a kind used as laboratory glassware.
* * *
The heading does not include:
* * *
(e) Laboratory, hygienic or pharmaceutical glassware (heading 70.17).
As we have previously stated, USP Type III Soda Lime glass is one of the glass types approved by the USP-NF for use in pharmaceutical packaging. Our research on the Internet indicates that the use of yellow amber glass of the types required by pharmaceutical standards is recommended for preparations sensitive to ultraviolet rays. Pharmaceutical standards prescribe that the transmission of light must be below 10 % of the incident radiation of each wavelength between 290/450 mµ (See, for e.g., http://www.bormiolirocco packaging.com/ pharmaceutical/technical_know_how/glass/index.htm). Although, you have not provided specific information on whether your bottles are below the 10% ceiling prescribed by pharmaceutical standards, you have informed us that your client sells 100 percent of its imports of this type of PVC coated bottle to a pharmaceutical manufacturer. That manufacturer fills the bottles with anesthetic - a volatile product with a higher pressure than the atmosphere. Each bottle is sealed with a non-removable crimp top spray head device. The bottles are delivered to the manufacturer’s customers – hospitals, clinics or doctor’s or dentist’s offices where surgery may take place. Based on this information, we proceed on the assumption that your bottles meet the standard. This information also indicates that your bottles are designed for closure by a special device, as mentioned in the ENs. Finally, you have provided information which indicates that plastic coated glass bottles are generally regarded by the pharmaceutical and chemical industry as being useful for the transportation of chemical and pharmaceutical products because the coating reduces slippage and breakage, thereby protecting personnel from exposure to dangerous materials. We find, therefore, that your bottles are “of a kind” used for the packing or conveyance of chemical or pharmaceutical products, as explained by the EN 70.10(A) and are classified in heading 7010, HTSUS.
By application of GRI 1, the PVC-coated bottles at issue are classified in heading 7010, HTSUS, and are specifically provided for in subheading 7010.90.0530, HTSUSA, which provides for: “Carboys, bottles … and other containers, of glass, of a kind used for the conveyance or packing of goods; …: Other: Serum bottles, vials and other pharmaceutical containers: Of a capacity exceeding 0.15 liter but not exceeding 0.33 liter.”
EFFECT ON OTHER RULINGS:
HQ 968112, dated June 8, 2006, is hereby revoked. In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Myles B. Harmon, Director
Commercial and Trade Facilitation Division