HQ 957267 - Protest 1101-94-100601; Industrial glassware; Laboratory glassware; EN 70.17; Nippon Kogasku (USA) Inc. v. United States, C.J. Tower & Sons v. United States; HRLs 955424, 955015, 951094, 086214, 087359. - United States International Trade Commision Rulings

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HQ 957267

May 16, 1995

CLA-2 R:C:M 957267 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 7017

District Director
U.S. Customs Service
2nd and Chestnut Streets
Room 102
Philadelphia, PA 19106-2999

RE: Protest 1101-94-100601; Industrial glassware; Laboratory glassware; EN 70.17; Nippon Kogasku (USA) Inc. v. United States, C.J. Tower & Sons v. United States; HRLs 955424, 955015, 951094, 086214, 087359.

Dear District Director:

The following is our decision regarding Protest 1101-94-100601 concerning your action in classifying and assessing duty on glass piping and fixtures under the Harmonized Tariff Schedule of the United States (HTSUS). Protestant has provided invoices and catalogs which contain pictures of the articles and an explanation regarding their functions.

FACTS:

Protestant imports and produces a wide variety of glass products in 3 different groups: chemical /pharmaceutical, television/home appliances and optics/opto-electronics. The articles subject to this protest belong to the chemical/pharmaceutical group. The chemical /pharmaceutical group is divided into 4 subgroups; chemical engineering, laboratory, pharmaceutical packaging and tubing.

The chemical engineering subgroup contains two types of glassware: components used to create the structure for different chemical and pharmaceutical production processes and laboratory equipment including beakers, receivers, flasks, funnels, desiccators, petri dishes, water meter lenses, tubes and capillaries for thermometers, cathode ray tubes and colored glass tubing for neon lighting.

The laboratory subgroup glassware is used in laboratories, environmental protection and industry and include; glass tubes with interior metal coating for ozone generators, glass tubing for laser sources and chromatography and special porous glass for separation processes in biotechnology. The pharmaceutical packing subgroup includes a variety of different ampules and vials.

The tubing subgroup includes a special glass tubing used for the manufacture of high quality primary packaging materials such as vials, ampules and other glass containers for the pharmaceutical and chemical industries; for the manufacture of laboratory equipment and apparatus; for bottles used in actinometer; and heat and corrosion-resistant flue liner systems with neutralizers used to reduce chimney cross-sections, for waste gas disposal and as lining systems for new chimneys.

This protest addresses specific articles of glassware belonging to these subgroups. The subject articles are described on submitted invoices as "2 ST KOL 450 COLUMN SECTION THERMOMETER BRANCH" (thermometer branch), "2 ST RO 450/1500/33 COLUMN SECTION" (column section), "1 ST ABS 450/200 COLUMN ADAPTOR" (column adaptor) and "20 ST BEIL 450/A INTERLAYER FOR BACKING FLANGES" (backing flanges).

According to one of the submitted catalogs, entitled "Glass Components for Process Application", individual glass components are part of a modular construction system. This modular system allows a variety of different processing systems to be built to individual specifications. The catalog describes the thermometer branch as a column component, the column section as a pipe, the column adaptor as a closing cover and the backing flanges as pieces for flange assembles for planing end bellows. All catalog articles are made of borosilicate glass. Borosilicate glass is the internationally standardized type of glass used for the construction of plants and piping in the chemical and pharmaceutical industries.

The subject merchandise was entered on January 25, 26, 27, February 22 and March 9 1994, under heading 7020, HTSUS, which provides for other glassware. On July 29, 1994, the entries were liquidated under heading 7017, HTSUS, as laboratory glassware. A protest was timely received on October 13, 1994.

ISSUE:

Are the subject glassware components laboratory glassware classifiable under heading 7017, HTSUS, or industrial glassware classifiable under heading 7020, HTSUS?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRIs). GRI 1, HTSUS, states, in pertinent part, that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes. Chapter 70, HTSUS, provides for glass and glassware. The headings under consideration are:

7017 Laboratory, hygienic or pharmaceutical glassware, whether or not graduated or calibrated

7020 Other articles of glass

Protestant argues that because the subject glassware is principally used to produce chemicals and pharmaceuticals it is general industrial glassware, not laboratory glassware.

In understanding the language of the headings the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, 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). EN 70.17, pg. 940, provides, in pertinent part, that:

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.), 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)...

According to this EN, the class "laboratory glassware" includes glassware used in any research, pharmaceutical or industrial laboratory.

While the EN 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 ENs 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. The submitted literature indicates that this glassware may be used to create a variety of scientific processes including crystallization, extraction, distillation, reaction and heat exchange. These processes are then combined with various other production methods to create chemicals and drugs.

Protestant argues that the subject glassware is excluded from heading 7017 by exclusionary note (a) of EN 70.17, which states in pertinent part that industrial glassware of heading 7020 is not classifiable under 7017. EN 70.20, pg. 945, states, in pertinent part, that:

This heading covers glass articles (including glass parts of articles) not covered by other headings of this Chapter or of other Chapters of the Nomenclature.

These articles remain here even if combined with materials other than glass, provided they retain the essential character of glass articles. The heading includes:

(1) Industrial articles such as pots, bowls, cylinders or discs for glazing hides or skins; protectors for safety or other apparatus; greasing cups; thread guides; sight-holes and gauge-glasses; S-shaped tubes; coils; guttering and drains for corrosive products (often of fused quartz or other fused silica); absorption drums for hydrochloric acid and trickling columns...

The glass articles described as industrial glassware for heading 7020, are general use articles. They may be used as components for a variety of different productions. That is not the case for the subject glass articles. The literature indicates that the subject glassware is used specifically for the creation of different scientific processes necessary in the production of pharmaceuticals and chemicals. Therefore, heading 7020, HTSUS, does not describe the subject glassware.

For other rulings concerning laboratory glassware see: Headquarters Ruling letter (HRL) 955424 dated March 21, 1994, HRL 955015 dated January 27, 1994, HRL 951094 dated May 1, 1992, HRL 086214 dated April 12, 1990, and HRL 087359 dated August 8, 1990.

For the foregoing reasons, we find that the subject glassware is classifiable under heading 7017, HTSUS, as laboratory glassware. Classification to the 8 digit level must be determined based on whether the articles are comprised of fused quartz or silica glass, glass having the linear coefficient of expansion not exceeding 5 x106 per Kelvin within a temperature range of 0øC of to 300øC, or other kinds of glass.

HOLDING:

The subject glassware is classifiable under heading 7017, HTSUS, as laboratory glassware. Classification to the 8 digit level must be determined based on whether the articles are comprised of fused quartz or silica glass, glass having the linear coefficient of expansion not exceeding 5 x106 per Kelvin within a temperature range of 0øC of to 300øC, or other kinds of glass.

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 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 this decision must be accomplished prior to the mailing of the decision. Sixty days from the date of this 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 to the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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