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HQ 965623




September 25, 2002

CLA-2 RR:TC:TE 965623 TMF

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.90.9889

Ms. Linda Otto
Ormco Corporation
1332 S. Lone Hill Avenue
Glendora, CA 91740

RE: Classification of cervical neck pad

Dear Ms. Otto:

This letter is in response to your correspondence dated January 21, 2002, to the U.S. Customs National Commodity Specialist Division, in which you requested a tariff classification ruling on certain cervical neck pads under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Three samples, along with your letter and additional correspondence of March 20, 2002, were submitted to our office for a reply. You also requested a country of origin determination. However, you failed to provide requested information pertaining to the manufacturing country of the components of the subject cervical neck pads. Therefore, if you would like this determination, please forward this information to our office for our consideration.

FACTS:

Ormco is a manufacturer of orthodontic and related dental products, including orthodontic headgear systems. Orthodontists use orthodontic headgear in conjunction with braces to help straighten patients’ teeth. When in use on a patient, Ormco’s headgear systems are made up of a metal facebow and a Break-Away Release Module System. The facebow’s outer arch hook into a Break-Away Release Module System, which fastens around the user's neck. The Break-Away Release Module System consists of a cervical neck pad or a high pull head cap with a spring release module and plastic straps attached at each end by means of a plastic clasp assembly. The plastic straps attached to each end of the facebow are adjustable. Each of the two straps has twelve holes along it. The ends of the facebow can be inserted into any of the holes. This allows the appliance to fit properly around the patient’s neck. In NY 811690, dated July 20, 1995, Customs classified facebows in subheading 9021.19.8500, HTSUSA, which provided for “artificial joints and other orthopedic or fracture appliancesother.”

You indicate that the subject cervical neck pad is made in Mexico and consists of a plastic foam pad covered with a textile sleeve. It measures 185 millimeters in length, 37 millimeters in width, and 6 millimeters in thickness. It is attached to a facebow that is composed of a stainless steel inner and outer arch. The cervical neck pad is made in three styles: denim back, nylon back, and a cotton/polyester front and back. The front of each style is covered entirely by a woven fabric composed of a cotton/polyester fiber blend. The back portion has sewn onto it a textile strap with the end doubled over to form loops to which the face bow and release module are attached.

The core of the foam pad is made of cellular vinyl PVC plastic that is covered on the two exterior sides: one side is covered with 100% polyester jersey knit scrim and the other side is embossed with a leather-like compact PVC plastic. According to your letter to the National Commodity Specialist Division dated March 20, 2002, the foam pad, with its jersey knit/leather-like compact plastic exterior, is generic, and has many uses. It is not engineered or purchased specifically for cervical neck pads. One example of another use for the foam pad is shoe insoles. It can vary in substance from one batch to the next.

You indicate in your various correspondence that the cervical neck pad’s primary function is to provide comfort and support to the user's neck. You also stated that without the foam pad, the headgear would be uncomfortable and the user would likely not wear the headgear.

You stated that the cervical neck pads are imported alone in sets of ten and sold separately without the release or facebow to orthodontists. You also stated that the cervical neck pads are sold to an orthodontist in either packages of five or ten, or in a set consisting of one cervical neck pad and two Release Modules.

ISSUE:

What is the proper classification of the cervical neck pads that are designed for use in conjunction with orthodontic headgear systems within the Harmonized Tariff Schedule of the United States Annotated (HTSUSA)?

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes. Where goods cannot be classified solely on the basis of GRI 1 and if the headings or legal notes do not require otherwise, the remaining GRIs 2 through 6 may be applied.

Additionally, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) are the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUSA. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Chapter 39

The subject cervical neck pad consists of a cellular plastic foam pad that is cut into PVC plastic a rectangular shape. Plastic foam is provided for in Chapter 39. Note 10 to Chapter 39 indicates that “in headings 3920 and 3921, the expression ‘plates, sheets, film, foil and strip’ applies toblocks of regular geometric shape, whether or not printed or otherwise surface-worked, uncut or cut into rectangles (including squares) but not further worked (even if when so cut they become articles ready for use).” In this instance, the cellular PVC plastic rectangular foam is possibly classifiable in subheading 3921.12.1950, HTSUSA, which provides for cellular sheets or plates of plastic combined with textile. However, the foam is also covered with 100% polyester jersey knit scrim and the other side is embossed with a leather-like compact PVC plastic and sold in various styles of textile sleeves. Note 2 of Chapter 39 indicates that Chapter 39 does not include “goods of section XI (textiles and textile articles).”

Further, Note 2(r) states that “articles of chapter 90” are excluded. Thus, the instant article is not classifiable in subheading 3921.12.1950, HTSUSA, if the merchandise is determined to be a good of Section XI.

The cervical neck pad consists of a foam pad inserted into a textile sleeve that is sewn closed. Because the subject article is composed of three or more components that are classifiable in two or more headings, we consider GRI 3(b), which states:

(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

EN (IX) to GRI 3(b) states, in pertinent part, that:

Composite goods [which are] made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts.

In this case, the cervical neck pad, which is sold in various colors of textile sleeves, consists of a textile sleeve outer surface and a foam pad which has polyester jersey knit scrim on one side and a leather-like compact PVC plastic embossed on another side. We find the cervical neck pad to be subject to GRI 3(b) as it is a composite good. The foam pad and textile sleeve are attached to one another so as to form a practicably inseparable whole. The foam pad provides comfort and support to the user. The textile sleeve outer surface attaches to the facebow and provides comfort when worn against the skin. Therefore, we find the subject cervical neck pad is a composite good with no one component providing the essential character of the pad.

Chapter 59: Textiles Articles of a Kind Suitable for Technical Uses

Chapter 59 provides for impregnated, coated, covered or laminated textile fabrics, and textile articles of a kind suitable for industrial use. In this case, the cervical neck pad is sold separately but used in conjunction with orthodontic headgear systems. Where an article is used for technical purposes, (other than those of headings 5908 to 5910), and it is not elsewhere in Section XI, it is classified in heading 5911. Although the term “technical uses” is defined in the Tariff, Note 7(b) to Chapter 59 describes “technical purposes” as those “of a kind in papermaking or similar machines (for example, for pulp or asbestos-cement), gaskets, washers, polishing discs and other machinery parts.)” However, in this case, heading 5911 is not applicable because the subject article, although used in conjunction with orthodontic headgear systems, does not meet the definition of “technical purposes” as provided within Note 7(b). It is not used in conjunction with any machinery process or activity, rather it is used in conjunction with the orthodontic headgear system, which is used for straightening teeth (which is not involved in machinery process or activity).

Heading 9021

As the pads are imported and sold separately but used with orthodontic headgear, we consider heading 9021, which provides for, among other things, orthopedic appliances, including crutches, surgical belts and trusses.

According to the EN to the heading, an article may be classifiable as an orthopedic appliance within heading 9021 if it either:

Prevents or corrects bodily deformities; or Supports or holds organs following an illness operation or injury.

The subject pad does not satisfy either requirement of heading 9021. Although the pads are used in conjunction with the orthopedic headgear, they are sold separately from the headgear system to provide comfort to the user. Further, Chapter Note 2(b) states, in pertinent part: Subject to note 1 above, parts and accessories for machines, apparatus, instruments or articles of this chapter are to be classified according to the following rules:

(b) Other parts and accessories, if suitable for use solely or principally with a particular kind of machine, instrument or apparatus, or with a number of machines, instruments or apparatus of the same heading (including a machine, instrument or apparatus of heading 9010, 9013 or 9031) are to be classified with the machines, instruments or apparatus of that kind.

Based on their condition as imported, we cannot conclude that the subject pads are designed to be used solely or principally with the orthopedic headgear system. Therefore, the subject cervical neck pad is not classifiable in heading 9021.

In the instant case, the subject articles are not ejusdem generis within the body of enumerated articles of headings 3921, 5911 or 9021, and since there are no headings within the Tariff that more specifically provide for the instant articles, we find them to be classifiable in heading 6307, HTSUSA, as other made up articles.

HOLDING:

The subject cervical neck pads are classified in subheading 6307.90.9889, HTSUSA, which provides for “other made up articlesother other.” The general column one duty rate is 7 percent ad valorem.

The designated textile and apparel category may be subdivided into parts. If so, the visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service which is updated weekly and is available for inspection at your local Customs office. The Status Report on Current Import Quotas (Restraint Levels) is also available on the Customs Electronic Bulletin Board (CEBB) which can be found on the U.S. Customs Service Website at www.customs.gov.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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