CLA-2 RR:TC:TE 966754 TMF
Maria E. Celis
Neville Peterson, LLP
80 Broad Street, 34th Floor
New York, NY 10004
RE: Classification of plastic release module and textile high pull strap
Dear Ms. Celis:
This letter is in response to correspondence dated September 15, 2003 submitted by former counsel to our office requesting a tariff classification ruling of certain plastic release modules and textile high pull straps under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) on behalf of the client, Sybron Dental Specialties (dba “SDS Ormco/Sybron Dental Specialties”). Four bags of samples of the merchandise were submitted to this office for our reply.
Further, we considered your supplemental submission dated December 14, 2003 in which you requested reconsideration of the classification of cervical neck pads. We determined that we are unable to rule on cervical neck pads as the original submission did not address them and CBP has issued a prior ruling on them. See Headquarters Ruling Letter (HQ) 965623, dated September 25, 2002. In addition, you indicated in further conversation with a member of my staff that your client would like reconsideration of this previous classification ruling on cervical neck pads which was issued by this office. However, CBP regulations do not provide for reconsideration of a pre-existing ruling in the context of a prospective ruling and you have been advised to submit a separate written reconsideration request for the ruling which addresses the cervical neck pad commodity as provided by 19 C.F.R. §177.12.
FACTS:
You stated in supplemental correspondence received by facsimile on December 15, 2003 that your client, Sybron Dental Specialties (aka “SDS Ormco as indicated on the submitted sample plastic bags) is an affiliate to Ormco Corporation. You stated that your client and Ormco manufacture and import all kinds of dental products for sale to the medical and dental markets. Ormco, on the other hand, only specializes in the manufacture, import and sale of orthodontic appliances and instruments, and endodontic instruments.
You submitted four plastic bags, which contained three high pull straps in colors of fuschia, neon green, and black. The label on the three high pull strap samples state: “Brite-Gear™” with the words “High Pull Straps-Pack of 10”. The other bag contains plastic release modules, identified as “C-Type Release Module—Part No. 715-2021”. The label on the release module samples also states that the release module is “heavy force” and “made in Switzerland”. Each of the four bags contains the same paper insert which lists a break-away release module and high pull strap.
In the original submission, it is stated that all of the orthodontic appliances are various parts of imported headgear systems used as a part of orthodontic treatment to straighten the patient’s teeth. It is also stated that Ormco imports the two parts of the system, the high pull straps and release modules.
The high pull strap is constructed of 100 percent Nylon, and measures 3/4 inches in width and .7 millimeters in thickness. When in use on a patient, it is indicated that Ormco’s headgear system is constructed of a metal face bow (not subject to the instant ruling), the subject plastic break-way release module (of which there are two types discussed below), and the nylon high pull straps. The release modules are two styles: one square end and a c-type release module, both may be of medium or high force.
ISSUE:
What is the proper classification of the plastic release module and textile high pull strap under 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. When goods cannot be classified solely on the basis of GRI 1 and if the headings or 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 HTSUS. See T.D. 89 80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The original submission claims that the two items at issue whether imported together or separately, are classifiable in subheading 9021.10.0090, HTSUSA, which provides for parts of orthodontic appliances.
Heading 9021
Note 1(a) to Chapter 90 states, in relevant part:
This chapter does not cover:
(a) Articles of a kind used in machines, appliances or for other technical uses,…of textile material (heading 5911).
Chapter 59 is limited to impregnated, coated, covered or laminated textile fabrics, and textile articles of a kind suitable for industrial use. The two styles of the subject release module are made of plastic and the high pull straps are made of nylon material. The term “technical uses” is described in Note 7(b) to Chapter 59 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 inapplicable because the subject articles, although used in conjunction with the metal facebow, do not meet the definition of “technical purposes” as provided within Note 7(b), HTSUSA. Neither article is used in conjunction with any machinery process or activity, rather they are used in conjunction with the metal facebow to straighten teeth (which is not involved in machinery process or activity). Thus, Note 1(a) to Chapter 90 does not apply.
Note 1(f) to Chapter 90 states:
This chapter does not cover: Parts of general use, as defined in note 2 to section XV, of base metal (Section XV) or similar goods of plastics (chapter 39).
The term “parts of general use” as defined by Note 2 to Section XV, HTSUSA, refers to:
Articles of heading 7307, 7312, 7315, 7317 or 7318 and similar articles of other base metals;
Springs and leaves for springs, of base metal, other than clock or watch springs (heading 9114); and
(c) Articles of heading 8301, 8302, 8308 or 8310 and frames and mirrors, of base metal, of heading 8306.
In chapters 73 to 76 and 78 to 82 (but not in heading 7315) references to parts of goods do not include references to parts of general use as defined above.
Subject to the preceding paragraph and to note 1 to chapter 83, the articles of chapter 82 or 83 are excluded from chapters 72 to 76 and 78 to 81.
In this instance, the subject plastic release modules and nylon high pull straps are not goods of a kind which are similar to “parts of general use” as outlined in Note 2 above. Neither article possesses a general function, as in the case of a clasp or buckle. Rather both articles possess specialized orthodontic designs that work in conjunction with each other to align the wearer’s teeth. Therefore, we do not find Note 2(f) precludes the two articles at issue from classification in Chapter 90, HTSUSA.
Heading 9021, HTSUSA, 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 parts of the body following an illness, operation or injury.
Note 7 to EN 90.21 states that orthopedic appliances include “dental appliances for correcting deformities of the teeth (braces, rings, etc.).” The original submission made by former counsel to your client states that the two articles “when assembled together…help straighten the patient’s teeth.” It is also stated that “[o]rthodontic headgear may be used to hold or move teeth or an entire arch [by creating force] that guide the growth of the face and jaws” and “mov[ing] teeth into better positions or to prevent teeth from moving where they are not supposed to [be].” Given these facts, it is our opinion that the subject high pull strap and plastic release modules are parts of appliances of heading 9021, HTSUSA.
Both of the subject articles are imported and sold separately: the release modules are made in Switzerland and the textile high pull straps are made in Mexico, but are used together with the metal face bow. As they are imported separately, they are not a set put up for retail sale nor composite goods of GRI 3. Rather, we find them to be classifiable separately as provided by GRI 1, HTSUSA, as parts of appliances of heading 9021, HTSUSA. We refer to Chapter Note 2(b), Chapter 90, which 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 the two articles at issue, in their condition as imported, it is our determination that they are designed to be used solely or principally with the orthopedic headgear system. Thus, they are classifiable pursuant to GRI 1, within subheading 9021.10.0090, HTSUSA, which provides for, among other things, parts of orthopedic appliances.
HOLDING:
Pursuant to GRI 1, the square end and c-type release module and the nylon high pull straps are classifiable in subheading 9021.10.0090, HTSUSA, which provides for, among other things, parts of orthopedic appliances. The duty rate is FREE.
A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division