CLA-2 RR:TC:MM 960498 DWS
Port Director of Customs
P.O. Box 619050
DFW, TX 75261
RE: Protest 5501-96-100381; Quartz Belljars; Semiconductor Etcher
Machines;
19 CFR 174.12(e)(1); Additional Rule of Interpretation
1(a); Class or Kind;
Explanatory Notes 70.17 and 70.20; HQ 957267; 7017.10.00
Dear Port Director:
The following is our decision regarding Protest 5501-96-100381 concerning your action in classifying and assessing duty
on quartz belljars under the Harmonized Tariff Schedule of the
United States (HTSUS).
FACTS:
The merchandise consists of belljars, specifically designed
for use with a semiconductor etcher machine. The belljars are
made of a clear fused quartz and are used to create a vacuum
chamber within the etcher machine. The operating conditions of
the belljars include a temperature range of 25 degrees to 400
degrees Celsius and an external pressure of 1 kilogram per
centimeter squared. The etcher machine is used in semiconductor
fabrication plants. It is our understanding from a
representative of the importer that the belljars are used solely
with etcher machines and are created to handle ionized and toxic
gases which exist during the etching process.
The belljars were entered on May 16, 17, 22, 28, June 1, 4,
11,17,21, July 5, 10, 16, 19, and 23, 1996, under subheading
7017.10.00, HTSUS, as laboratory, hygienic or pharmaceutical
glassware, of fused quartz or other fused silica. The entries
were liquidated on September 6, 13, 20, 27, October 4, 11, 25,
November 1 and 8, 1996, under subheading 7020.00.00, HTSUS, as
other articles of glass. The protest was filed on December 6,
1996.
The subheadings under consideration are as follows:
7017.10.00: [l]aboratory, hygienic or pharmaceutical
glassware, whether or not
graduated or calibrated: [o]f fused quartz or
other fused silica.
The 1996 general, column one rate of duty for goods
classifiable under this
provision is 5.3 percent ad valorem.
7020.00.00: [o]ther articles of glass.
The 1996 general, column one rate of duty for goods
classifiable under this
provision is 6 percent ad valorem.
ISSUE:
Whether the protest was timely filed with regard to the
entries liquidated on September 6, 1996.
Whether the quartz belljars are classifiable under
subheading 7017.10.00, HTSUS, as laboratory, hygienic or
pharmaceutical glassware, of fused quartz or other fused silica,
or under subheading 7020.00.00, HTSUS, as other articles of
glass.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's). GRI
1 provides that classification is determined according to the
terms of the headings and any relative section or chapter notes.
Section 174.12(e)(1), Customs Regulations [19 CFR
174.12(e)(1)], states:
[t]ime of filing. Protests shall be filed, in accordance
with section 514, Tariff Act
of 1930, as amended (19 U.S.C. 1514), within 90 days after
either:
(1) The date of the notice of liquidation or reliquidation
in accordance with
sections 159.9 or 159.10 of this chapter.
The protest was filed 91 days (December 6, 1996) after the
entries were liquidated on September 6, 1996. Therefore, as the
protest was not timely filed as it relates to those entries
liquidated on September 6, 1996, based upon 19 CFR 174.12(e)(1),
it should be denied with regard to those entries.
As the protest was timely filed concerning the remaining
liquidated entries, we must determine the proper classification
of the belljars under the HTSUS.
Additional U.S. Rule of Interpretation 1(a), HTSUS, states
that:
[i]n the absence of special language or context which
otherwise requires--
(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 to which the imported goods belong, and the
controlling use is the
principal use.
The protestant claims that the subject belljars are
classifiable under heading 7017, a use provision, because they
are used as industrial laboratory glassware. Therefore, we must
ascertain whether the belljars are in the same class or kind as
the laboratory glassware of heading 7017, HTSUS.
Factors pertinent in determining whether merchandise falls
within a particular class or kind include general physical
characteristics, the expectation of the ultimate purchaser,
channels of trade, environment of sale (accompanying accessories,
manner of advertisement and display), use in the same manner as
merchandise which defines the class, economic practicality of so
using the import, recognition in the trade of this use.
Susceptibility, capability, adequacy, or adaptability of the
import to the common use of the class is not controlling. U.S.
v. The Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F.2d 373
(1976).
In understanding the language of the headings the
Explanatory Notes of the Harmonized Commodity Description and
Coding System may be utilized. The Explanatory Notes, 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). Explanatory Note
70.17, (p. 1025), provides, in part, that:
[t]his 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)...
In HQ 957267, dated May 16, 1995, in dealing with a similar
classification issue, we stated that:
[w]hile [Explanatory Note 70.17] 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 [Explanatory Notes] 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.
As the protestant states that the subject belljars are
dedicated solely for use in semiconductor etcher machines and are
especially created for such a use, we find that they are not
industrial laboratory glassware because the subject belljars are
not "used to create certain scientific processes necessary for
the production of chemical and pharmaceutical products."
Therefore, even though belljars are named in Explanatory Note
70.17, the subject belljars are not included in the class or kind
of articles classifiable under heading 7017, HTSUS.
Explanatory Note 70.20 (p. 1030) states, in part, that:
[t]his heading covers glass articles (including glass parts
of articles) not
covered by other headings of this Chapter or of other
Chapters of the
Nomenclature.
Because the belljars are not covered more specifically
elsewhere in the HTSUS, they are classifiable under subheading
7020.00.00, HTSUS.
HOLDING:
As the protest was not timely filed as it relates to those
entries liquidated on September 6, 1996, based upon 19 CFR
174.12(e)(1), it should be DENIED with regard to those entries.
The belljars are classifiable under subheading 7020.00.00,
HTSUS, as other articles of glass. With regard to the remaining
liquidated entries, the protest should also 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, together with the Customs Form 19,
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 the decision must be accomplished prior
to mailing of this decision. Sixty days from the date of the
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 the public via the Diskette Subscription Service, Freedom of
Information Act, and other public access channels.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division