HQ 0951874 - Request for Reconsideration of New York Ruling Letter 862514 concerning the tariff classification of plastic mesh used in radiation therapy. - United States International Trade Commision Rulings

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HQ 951874
January 15, 1993

CLA-2 CO:R:C:F 951874 STB

CATEGORY: CLASSIFICATION

TARIFF No.: 3926.90.9090

Mr. Arthur M. Rohner
Nuclear Associates
100 Voice Road
P.O. Box 349
Carle Place, NY 11514-0349

RE: Request for Reconsideration of New York Ruling Letter 862514 concerning the tariff classification of plastic mesh used in radiation therapy.

Dear Mr. Rohner:

This letter is in response to your request for a reconsideration of New York Ruling Letter (NYRL) 862514, dated May 16, 1991, regarding the classification of plastic immobilization mesh known as "Orfit", used in radiation therapy. The mesh is from Belgium. A sample was submitted with your letter.

FACTS:

In NYRL 862514, the subject mesh was classified in subheading 3926.90.9050, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), the provision for other articles of plastics, other (current identical provision is 3926.90.9090). It is your contention that the mesh should be classified in subheading 9022.11.0000, HTSUSA, the provision for apparatus based on the use of alpha, beta or gamma radiations, for medical, surgical, dental or veterinary uses, including radiography or radiotherapy apparatus.

The subject immobilization mesh is used to create a mask or form which will position and immobilize a patient during radiotherapy. It is used particularly for the head and neck area. When heated, the plastic mesh becomes moldable. It can then be placed over the patient's head to form a mask which conforms precisely to his anatomy. When the mesh cools, it becomes rigid and retains the newly formed shape. It is then used as a restraint during radiation therapy. This facilitates repeated accurate positioning during radiotherapy.

ISSUE:

Whether the plastic mesh should be classified in the provision for other articles of plastics or in the provision for X-ray apparatus and parts and accessories thereof?

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI's). The systematic detail of the harmonized system is such that virtually all goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI's may then be applied. The Explanatory Notes (EN's) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI's.

In this instance the subject merchandise can be classified by reference to GRI 1. The plastic mesh is classified in subheading 3926.90.9090, HTSUSA, the provision for other articles of plastics. We disagree with your position that the plastic mesh is properly classified in subheading 9022.11.0000, HTSUSA, as x-ray apparatus. Such a classification determination would require that the mesh qualify as an "accessory" of the apparatus since the mesh does not fit the description of "apparatus" set out in the tariff language at heading 9022, HTSUSA, nor is it a part of such apparatus.

The EN's at 90.22, under the title "Parts and Accessories" (copy attached), describe four groups of articles that are included as parts and accessories of X-ray apparatus. The immobilization mesh does not fit the description of the items and categories of items described therein.

HOLDING:

The immobilization mesh known as "Orfit" is classified in subheading 3926.90.9090, HTSUSA, the provision for other articles of plastics, other, dutiable at the general column one rate of duty of 5.3 percent ad valorem.

NYRL 862514, dated May 16, 1991, is hereby affirmed with the conforming change in subheading number as indicated.

Sincerely,

John Durant, Director

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