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HQ 084710

July 31, 1989

CLA-2 CO:R:C:G 084710 HP

CATEGORY: CLASSIFICATION

TARIFF NO.: 7017.90.0050

Mr. J. Paul Richards
President
Johns Scientific Inc.
175 Hanson St.
Toronto, Ontario, Canada M4C 1A7

RE: Classification of glassware used to ship biological media

Dear Mr. Richards:

This is in reply to your letter of April 12, 1989, to our New York office concerning the tariff classification of laboratory glassware, produced in Canada, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The merchandise at issue consists of unmarked screw threaded glassware used exclusively for the conveyance of biological media. The merchandise will be imported empty to laboratories and others, and usually will be accompanied by caps and stoppers designed to secure the biological material. Once in the United States, the containers are washed, sterilized and filled with different types of media. They are then capped, labelled, and packed in shipping containers. You state that similar articles used for packaging air freshener would undergo a similar process, but skip the "washing and sterilizing step because septic conditions would not be so critical."

ISSUE:

Whether the glassware is a container used for the packing and conveyance of goods under the HTSUSA?

LAW AND ANALYSIS:

Heading 7010, HTSUSA, provides for glass containers used commercially for the conveyance or packing of goods. The Explanatory Notes to the HTSUSA constitute the official interpretation of the tariff at the international level. Explanatory Note (e) for heading 7010 states that the heading does not include:

(e) Laboratory, hygienic or pharmaceutical glassware (heading 70.17).

Similarly, the Explanatory Notes for heading 7017 provide that:

[heading 7017, nominally providing for laboratory, hygienic or pharmaceutical glassware] excludes:

(a) containers for the conveyance or packing of goods (heading 7010) . . . .

The issue, therefore, is whether the merchandise is laboratory glassware.

Headings 7010 and 7017, HTSUSA, are both use provisions. Consequently, the heading under which the subject merchandise will be classified will be controlled by the use in the United Stats 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 is the principal use -- the use which exceeds any other use. Additional U.S. Rule of Inter- pretation 1(a), HTSUSA. The actual use of certain shipments of merchandise will not dictate a classification controlled by principal use.

Information before this office indicates that the subject merchandise is identical in all material respects to flat- bottomed culture tubes threaded for a screw cap which are principally used in a laboratory setting. Although quantities of such tubes may be used in other applications, we have no evidence to support a conclusion that any other use constitutes the principal use of goods of the class or kind to which the tubes belong, or that such tubes materially differ from tubes we determine to be principally used in the laboratory so as to be considered goods of a different class or kind.

HOLDING:

As a result of the foregoing, the merchandise at issue is classifiable under subheading 7017.90.0050, HTSUSA, as laboratory, hygenic or pharmaceutical glassware, whether or not graduated or callibrated, other, other. Articles which meet the definition of "goods originating in the territory of Canada" (see General Note 3(c)(ii)(B), HTSUSA) are subject to reduced rates of duty under the United States-Canada Free Trade Agreement Implementation Act of 1988. If the merchandise constitutes "goods originating in the territory of Canada," the applicable rate of duty is 7.5 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division?

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