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HQ 088465


February 22, 1991

CO:R:C:G NLP 088465

CATEGORY: CLASSIFICATION

TARIFF NO.: 9022.29.80

District Director
U.S. Customhouse
Interstate 87
Champlain, New York 12919

RE: Application for Further Review of Protest No. 0712-90-000494, (June 11, 1990); Gammacell 220 reloaded with Cobalt-60.

Dear District Director:

This protest was filed your decision in the liquidation on March 16, 1989 of the Gammacell 220 reloaded with cobalt, entry number 112-21875567.

FACTS:

The Gammacell 220, a Canadian product, was exported from the United States to Canada to be reloaded with cobalt 60. The unit was then returned to the United States. The Gammacell 220 is a high dose rate research irradiator. The literature from the manufacturer, Atomic Energy of Canada Limited, states that this product is being used in a wide range of studies including medical product sterilization, biological and genetic effects, food preservation, growth stimulation, chemistry pollution, etc.

The Gammacell 220 reloaded with cobalt 60 was liquidated under subheading 9022.29.80, HTSUSA, as apparatus based on the use of alpha, beta or gammma radiations, whether or not for medical, surgical, dental or veterinary uses, including radiography or radiotherapy apparatus, for other uses. The applicable rate of duty is 4 percent ad valorem.

The protestant maintains that the Gammacell 220 serves only as a shipping package and the cobalt is the item being shipped. As a result, only the cobalt 60 is subject to classification. The cobalt 60 would be classifiable in 2844.40.0010, HTSUSA, which provides for elements, isotopes and compounds with cobalt- 60 radioactivity only and it would be entitled to entry free of duty.

ISSUE:

What is the tariff classification of the Gammacell 220 refilled with cobalt 60.

LAW AND ANALYSIS:

Heading 2844, HTSUSA, provides for the following:

Radioactive chemical elements and radioactive isotopes (including the fissile or fertile chemical elements and isotopes) and their compounds; mixtures and residues containing these products.

The Explanatory Notes to Heading 2844 state the following:

Radioactive isotopes and their compounds are normally put up in the form of powders, solutions, needles, thread or sheets. They are generally contained in glass ampoules, in hollow platinum needles, in stainless steel tubes, etc., which are packed in anti- radiation metal outer containers (generally of lead), the choice of thickness of which depends on the degree of radioactivity of the isotopes.

Therefore, Heading 2844 provides for radioactive materials packed in tubes, needles, etc., designed to be used for transportation purposes to ensure safety of radioactive materials. This heading does not provide for apparatus or machinery.

It is Custom's position that the Gammacell 220 filled with cobalt 60 is more than a transporting package for the cobalt. With the cobalt, the Gammacell 220 becomes a machine that performs certain functions; it is a high dose rate research irradiator. As a result, the instant product would not be classifiable in Heading 2844, HTSUSA. The Gammacell 220 refilled with cobalt 60 would be classifiable in subheading 9022.29.80, which provides for, HTSUSA, which provides for apparatus based on the use of alpha, beta or gammma radiations, whether or not for medical, surgical, dental or veterinary uses, including radiography or radiotherapy apparatus, for other uses.

HOLDING:

The Gammacell 220 is classifiable in subheading 9022.29.80, HTSUSA, which provides for apparatus based on the use of alpha, beta or gammma radiations, whether or not for medical, surgical, dental or veterinary uses, including radiography or radiotherapy apparatus, for other uses. The rate of duty is 4 percent ad valorem.

The protest should be denied in full. A copy of this decision should be attached to the Form 19 Notice of Action to be sent to the protestant.

Sincerely,

John Durant, Director
Commercial Rulings Division

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