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HQ 954681


March 1, 1994

CLA-2 CO:R:C:M 954681 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 7010.10.00

District Director
U.S. Customs Service
610 South Canal Street
Chicago, Illinois 60607

RE: Protest No. 3901-93-100533; 2 cc Univial; EN 70.10; ampoule; 7010.90.05; serum bottle

Dear District Director:

This is in response to Protest No. 3901-93-100533, which pertains to the tariff classification of a 2 cc Univial under the Harmonized Tariff Schedule of the United States ("HTSUS"). A sample was submitted for examination.

FACTS:

The glass article under consideration is a 2 cc Univial ("Univial"). The entry of the Univial was liquidated on March 19, 1993, under subheading 7010.10.00, HTSUS, as an ampoule. In a protest timely filed on March 26, 1993, the protestant contends that the Univial is classified under subheading 7010.90.05, HTSUS, as a serum bottle.

The protestant states that the Univial is made from a mold, and not obtained from a drawn glass tube. Therefore, pursuant to Explanatory Note (EN) 70.10 of the Harmonized Commodity Description and Coding System, the protestant contends that the Univial is not classifiable as an ampoule under subheading 7010.10.00, HTSUS, but as a serum bottle under subheading 7010.90.05, HTSUS.

ISSUE:

Is the 2 cc Univial classified as an ampoule under subheading 7010.10.00, HTSUS, or as a serum bottle under subheading 7010.90.05, HTSUS?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, states, in part, that "for legal purposes, classification shall be determined according to terms of the headings and any relative section or chapter notes...." The competing subheadings are:

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...

7010.10.00 Ampoules

7010.90.05 Other...Serum bottles, vials and other pharmaceutical containers.

In understanding the language of the headings of the HTSUS, the Harmonized Commodity Description and Coding System (HCDCS) Explanatory Notes (ENs) may be utilized. The ENs, although not dispositive, are to be used to determine the proper interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

EN 70.10 (pgs. 933-934) states that heading 7010, HTSUS, "...covers 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...

(C) Ampoules, usually obtained from a drawn glass tube, and intended to serve, after sealing, as containers for serums or other pharmaceutical products, or for liquid fuels (e.g., ampoules of petrol for cigarette lighters), chemical products, etc.

(D) Tubular containers and similar containers generally obtained from lamp-worked glass tubes or by blowing, for the conveyance or packing of pharmaceutical products or similar uses."

EN 70.10 states that the ampoules are "...usually obtained from a drawn glass tube....(emphasis added)." EN 70.10 does not state that the ampoule must be made from a drawn glass tube. Therefore, there is no requirement that an ampoule must be made from a drawn glass tube. An ampoule may be made from a mold, as is the circumstance with the Univial under consideration.

The form of the Univial corresponds exactly to the common form of an ampoule found in the glass industry. The upper portion of the Univial, i.e., a crimp top designed for sealing, is unique to an ampoule. A serum bottle or vial does not have this feature. We note that both ampoules and serum bottles/vials are used to hold serums or other pharmaceutical products. However, an ampoule will ultimately be used to contain a serum or other pharmaceutical. It is unique and different from an ordinary serum bottle/vial because it has a special upper form which will permit sealing. The physical characteristics of the Univial are that of an ampoule classifiable under subheading 7010.10.00, HTSUS.

HOLDING:

The 2 cc Univial is classified as an ampoule under subheading 7010.10.00, HTSUS.

The protest is DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed, with the Customs Form 19, 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 the 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, Lexis, Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director

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