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HQ 967116




October 28, 2004

CLA-2 RR:CR:TE 967116 KSH

TARIFF NO.: 9021.10.0090

Maria E. Celis, Esq.
Neville Peterson LLP
17 State Street, 19th Floor
New York, NY 10004

RE: Revocation of Headquarters Ruling Letter (HQ) 965623, dated September 25, 2002; Classification of cervical neck pads.

Dear Ms. Celis:

This is in response to your letter of April 28, 2004, on behalf of your client, Sybron Dental Specialists (Sybron), and its subsidiary Ormco Corporation (Ormco), in which you request reconsideration of Headquarters Ruling Letter (HQ) 965623, issued to your client on September 25, 2002, concerning the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of cervical neck pads. The cervical neck pads were classified in subheading 6307.90.9889, HTSUS, which provides for “Other made up articles, including dress patterns: Other: Other: Other, Other: Other." You assert that the cervical neck pads are specially dedicated for use as cervical headgear designed to exert the appropriate amount of tension to prevent malocculsion. Since the issuance of that ruling, CBP has reviewed the classification of this item and has determined that the cited ruling is in error.

We note that in HQ 966754, dated December 30, 2003, this office issued your client a ruling classifying certain plastic release modules and textile high pull straps to be used in conjunction with the cervical neck pads in subheading 9021.10.0090, HTSUS, which provides for, among other things, parts of orthopedic appliances.

Pursuant to section 625(c)(1), Tariff Trade Act of 1930 (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), notice of the proposed revocation of HQ 965623 was published on August 25, 2004, in Vol. 38, No. 35, of the Customs Bulletin. No comments were received in response to the notice.

FACTS:

Ormco, is a manufacturer of orthodontic and related dental products, including orthodontic headgear systems. When in use on a patient, Ormco’s headgear systems are made up of a metal facebow and a Break-Away Release Module System. Each of the components are imported separately. The facebow’s outer arch hooks 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 are inserted into the appropriate holes to exert the appropriate amount of tension to treat malocclusion. The cervical neck pads and high pull head caps also hold the facebow in place in the patient’s mouth and together with the plastic straps, exert the appropriate amount of tension to treat the patient.

We note that in the prior submission upon which HQ 965623 was based, your client indicated that the cervical neck pad’s primary function was to provide comfort and support to the user’s neck. Your client further stated that while the neck pad does encourage downward jaw growth, it is not the neck pad in particular that accomplishes this. The cervical neck pads measure 7 ½” by 1 ½” and are made from textile and foam padding with a nylon band sewn into one side of the pad.

ISSUE:

Whether the subject cervical neck pads are classifiable as other made up articles under subheading 6307.90.9889, HTSUS, or as parts and accessories of orthopedic appliances under subheading 9021.10.0090, HTSUS.

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined 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 may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings.

Heading 6307, HTSUS, covers other made up articles of textile materials. The EN to heading 6307, HTSUSA, indicate that the heading covers made up articles of any textile material which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature.

Thus, a determination must be made whether the cervical neck pads are included more specifically in the other headings of Section XI or elsewhere in the Nomenclature before classifying them in heading 6307, HTSUS.

Heading 9021, HTSUS, provides for, “orthopedic appliances, including crutches, surgical belts and trusses; splints and other fracture appliances; artificial parts of the body; hearing aids and other appliances which are worn or carried, or implanted in the body, to compensate for a defect or disability; parts and accessories thereof.” According to the EN to the heading, an article may be classifiable as an orthopedic appliance within heading 9021 if it either:

(a) Prevents or corrects bodily deformities; or

(b) Supports or holds parts of the body following an illness operation or injury.

EN 90.21 states that orthopedic appliances include "[d]ental appliances for correcting deformities of the teeth (braces, rings, etc.)."

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[.]

A device may be considered a “part” of an article even though the device is not necessary to the operation of the article, provided that once the device is installed the article cannot function properly without it. Clipper Belt Lacer Co., Inc. v. United States, 14 C.I.T. 146, 738 F.Supp. 528 (1990), aff'd 923 F.2d 835 (1991).

The cervical neck pad is a part of the cervical headgear that, as your client States, when combined with the facebow, “provide[s] a vector force either straight backward from the teeth towards the back of the bottom of the head, or upward and backward from the teeth towards the crown of the head" and "without the neck pad/ Breakway Release Module System, the cervical headgear would not effectively correct such malocclusions." Given these facts, the cervical neck pad is a part of appliances of heading 9021, HTSUSA.

HOLDING:

HQ 965623, dated September 25, 2002, is hereby revoked.

The cervical neckpad is classified in subheading 9021.10.0090 HTSUS, which provides for “Orthopedic appliances, including crutches, surgical belts and trusses; splints and other fracture appliances; artificial parts of the body; hearing aids and other appliances which are worn or carried, or implanted in the body, to compensate for a defect or disability; parts and accessories thereof: Orthopedic or fracture appliances, and parts and accessories thereof, Other.” The applicable rate of duty is free.

HQ 965623 is hereby revoked. In accordance with 19 U.S.C. 1625(c), this ruling will become effective sixty days after publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon, Director

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