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HQ 085755

February 27, 1990

CLA-2:CO:R:C:G 085755 SER


TARIFF NO.: 7017.90.00

Steven Knox
District Director - Philadelphia
U.S. Customs Service
Second and Chestnut Streets
Philadelphia, PA 19106

RE: Internal Advice on Laboratory/Pharmaceutical bottles Internal Advice Request 50/89

Dear Mr. Knox:

This is in reference to your request for internal advice in regard to glass bottles which have been classified in 7017.90.00, HTSUSA, as laboratory, hygienic or pharmaceutical glassware. Mr. Hans Kuster of Hanke, Inc., contends that the proper classification is subheading 7010.90.00, HTSUSA, which provides for glass containers used commercially for the conveyance or packing of goods.

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 States 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 Interpretation 1(a), HTSUSA. The actual use of certain shipments of merchandise, by some importers, will not dictate a classification controlled by principal use.

It is not questioned that the merchandise at issue is utilized in both a laboratory setting and as a container for the conveyance of medicines. The importer states that all of the goods presently being imported are destined for a pharmaceutical manufacturing company to be utilized in the conveyance of medicine. We do not doubt that this is true, but it is the principal use of the class or kind of this product of the entire industry that is important, not just one shipment by a singular importer. Furthermore, the indicia created by the inclusion of the sample in a catalog which exhibits other items which are of no doubt articles of laboratory glassware, is that this importer would quite likely sell this product as laboratory glassware as well as for the conveyance of medicine.

Based upon information before this office it is Customs position that the subject merchandise is of the class or kind of article that is principally used in a laboratory setting, and is properly classified in subheading 7017.90.00, HTSUSA. The sample is a standard, small, round-bottomed, cylinder styled bottle that is commonly used as laboratory glassware. If the importer can prove that his individual product differs from the standard form of laboratory glassware, then subheading 7010.90.00, HTSUSA can be utilized. As mentioned in your memorandum, one factor that could prove use as a container would be if the bottles were imported with a seal that is used to cover the bottle. This is not the only factor that could prove that a product should be classified in subheading 7010.90.00, HTSUSA, but the point is that the burden of proof is on the importer.

If you should have any further questions, please do not hesitate to contact this office.


John Durant, Director
Commercial Rulings Division

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