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HQ 955424


March 21, 1994

CLA-2 CO:R:C:M 955424 RFA

CATEGORY: CLASSIFICATION

TARIFF NO.: 7017.90.00

Regional Commissioner of Customs c/o Protest and Control Section
Customs House
6 World Trade Center
Room 761
New York, NY 10048-0945

RE: Protest 1001-93-104821; Glass Vials; Accessory to Spectrophotometer; heading 9027; EN 90.27;

Dear District Director:

The following is our decision regarding Protest 1001-93- 104821, which concerns the classification of glass vials under the Harmonized Tariff Schedule of the United States (HTSUS). The entry of the subject merchandise was liquidated on April 30, 1993. The protest was timely filed on July 22, 1993.

FACTS:

The subject merchandise, 20 ml. glass vials, model HS-100- 101, are borosilicate, clear standard. Based upon the catalog description, the glass vials are designed for use in the laboratory. The importer claims that the glass vials are an accessory to a spectrophotometer.

The merchandise was entered under subheading 7010.90.50, HTSUS, as glass containers for the packing and conveyance of goods. The entry was liquidated under subheading 7017.90.00, HTSUS, as other laboratory glassware.

The subheadings under consideration are as follows:

7010.90.50: Carboys, bottles, flasks, jars, pots, vials, ampoules and other containers, of glass, of a kind used for the conveyance or packing of goods . . . : [o]ther: [o]ther containers (with or without their closures) . . . .

Goods classifiable under this provision have a general, column one free rate of duty.

7017.90.00 Laboratory, hygienic or pharmaceutical glassware, whether or not graduated or calibrated: [o]ther . . . .

Goods classifiable under this provision have a general, column one rate of duty of 8.4 percent ad valorem.

9027.90.44 Instruments and apparatus for physical or chemical analysis (for example, polarimeters, refractometers, spectrometers, gas or smoke analysis apparatus); instruments and apparatus for measuring or checking viscosity, porosity, expansion, surface tension or the like; . . . microtomes; parts and accessories thereof: [m]icrotomes; parts and accessories: parts and accessories:
[o]ther. . . .

Goods classifiable under this provision have a general, column one rate of duty of 4.9 percent ad valorem.

ISSUE:

Whether the subject glass vials are classifiable as laboratory glassware or as an accessory to spectrophotometers under the HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

According to the information provided, the glass vials are to be used in a laboratory setting. Laboratory glassware is provided for under heading 7017, HTSUS. However, the protestant claims that the glass vials are specifically made for use with spectrophotometers and should therefore be classified as a part or an accessory of the spectrophotometers under heading 9027, HTSUS.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the Customs Cooperation Council's official interpretation of the HTSUS. While not legally binding, 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. 89-90, 54 Fed.Reg. 35127, 35128 (August 23, 1989). EN 90.27, page 1518, provides guidance when:

"[c]lassification of goods which are potentially within the scope both of this heading and of heading 70.17 (laboratory glassware).

In these cases, classification is governed by the following considerations:

(1) If an article has the essential character of glassware (whether or not graduated or calibrated, and whether or not with subsidiary stoppers, connections, etc., of rubber, etc.), it is not to be classified in this heading even if it is normally known as a particular instrument or apparatus.

(2) In general, instruments normally cease to have the essential character of glassware when they consist partly of glass but are mainly of other materials, or if they consist of glass parts incorporated or permanently fixed in frames, mounts, cases or the like.

(3) The combination of glass parts with measuring instruments (e.g., pressure gauges, thermometers) may, in practice, provide grounds for considering such instruments as proper to this heading.

The subject merchandise has the essential character of glassware because the glass vials are not incorporated or permanently fixed in frames, mounts, cases or the like, nor do they contain measuring instruments such as pressure gauges or thermometers. Furthermore, Note 1(e) to Chapter 90 states that Chapter 90 does not cover goods of heading 7017, HTSUS. Based upon Note 1(e) to Chapter 90 and the guidance set forth in EN 90.27, we find that classification of the glassware under heading 9027, HTSUS, is precluded. The subject merchandise are glass articles of a kind used in laboratories which are provided for under heading 7017, HTSUS.

HOLDING:

For the foregoing reasons, the glass vials are classifiable under subheading 7017.90.00, which provides for: "[l]aboratory, hygienic or pharmaceutical glassware, whether or not graduated or calibrated: [o]ther . . . ."

The protest should 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 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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