OT:RR:CTF:TCM H061207 ARM
Mr. Jay Park
Excel International of N.Y. Corp.
146-27 167th St., Suite 201
Jamaica, NY 11434
RE: Reconsideration of NY N050327; Safe ‘n’ Sure and Deluxe Safe ‘n’ Sure Phosphor Plate Barrier Envelopes
Dear Mr. Park:
This is in response to your letter and submitted sample, dated March 12, 2009, requesting reconsideration of New York Ruling Letter (“NY”) N050327, dated February 20, 2009, regarding the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of phosphor plate barrier envelopes. We have reviewed that ruling and find it to be incorrect. This ruling modifies NY N050327.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625 (c)(1)), 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), ), a notice was published in the CUSTOMS BULLETIN, Volume 48, No. 35, on September 3, 2014, proposing to revoke New York Ruling Letter (NY) N050327, dated February 20, 2009, and any treatment accorded to substantially identical transactions. No comments were received in response to this notice.
FACTS:
The merchandise at issue is the “Safe ‘n’ Sure” and “Deluxe Safe ‘n’ Sure” Phosphor Plate Barrier Envelopes. In NY N050327, we stated:
The next two samples are the Safe’n’Sure and Deluxe Safe’n’Sure Phosphor Plate Barrier Envelopes. A phosphor plate is placed in a barrier envelope and then placed on a film holding device. The phosphor plates are exposed to x-rays inside the patient’s mouth, removed, and then read by a specialized apparatus. These envelopes are not accessories to X-ray apparatus, but rather are accessories to photographic plates and films, which are excluded from heading 9022 by Harmonized System Explanatory Note Exclusion (b) to 9022.
In your March 12, 2009 letter, you confirm that these photostimulable sensors require the image to be placed in a scanner which transfers the image to a computer. The product information submitted states “Safe ‘n’ Sure is available for . . . plates and work with any plate on the market (Kodak, Dentoptix, etc).”
ISSUE:
Whether the Phosphor Plate Barrier Envelopes are accessories to x-ray apparatus of heading 9022, or, if not, are classified as plastic articles of heading 3926.
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs.
The HTSUS provisions under consideration are the following:
3926 Other articles of plastics and articles of other materials of
headings 3901 to 3914 (con.):
3926.90: Other:
3926.90.99 Other . . . .
* * * * *
9022 Apparatus based on the use of X-rays or of alpha, beta or gamma radiations, whether or not for medical, surgical, dental or veterinary uses, including radiography or radiotherapy apparatus, X-ray tubes and other X-ray generators, high tension generators, control panels and desks, screens, examination or treatment tables, chairs and the like; parts and accessories thereof:
Apparatus based on the use of X-rays, whether or not for medical, surgical, dental or veterinary uses, including radiography or radiotherapy apparatus:
9022.90 Other, including parts and accessories:
Other:
9022.90.60 Of apparatus based on the use of X-rays
Note 2(u) to Chapter 39 states, in pertinent part, the following:
2. This chapter does not cover:
***
(u) Articles of chapter 90 (for example, optical elements, spectacle frames, drawing instruments);
***
Note 2 to Chapter 90, HTSUS, provides as follows: 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: (a) Parts and accessories which are goods included in any of the headings of this chapter or of chapter 84, 85 or 91 (other than heading 8485, 8548 or 9033) are in all cases to be classified in their respective headings;
(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;
(c) All other parts and accessories are to be classified in heading 9033.
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
EN 39.26 states, in pertinent part, the following:
This heading covers articles, not elsewhere specified or included, of plastics (as defined in Note 1 to the Chapter) or of other materials of headings 39.01 to 39.14.
They include:
.
(4) Dust sheets, protective bags, awnings, file covers, document jackets, book covers and reading jackets, and similar protective goods made by sewing or glueing together sheets of plastics.
EN 9022 states, in pertinent part, the following:
PARTS AND ACCESSORIES
Subject to the provisions of Notes 1 and 2 to this Chapter (see the General Explanatory Note), parts and accessories identifiable as being solely or principally for use with X ray apparatus, etc., are also classified in this heading. . ..
The heading also excludes: . . . .
(b) Photographic plates and film (Chapter 37).
* * * * *
The instant merchandise consists of phosphor plate barrier envelopes made of plastic. These envelopes cover the phosphor plate, a photographic plate classifiable in Chapter 37. Photographic plates and film of Chapter 37 are excluded from classification in heading 9022. The marketing literature states “Our regular Safe N Sure PSP envelopes protect your plates while making it quick and easy to load and unload. And your patients will enjoy the added comfort from our rounded corners and soft edges.”
In N050327 we reasoned that the sleeves at issue here are designed as accessories to the photographic plates, and not accessories to an article of heading 9022, HTSUS. Since there are no provisions for accessories of Chapter 37, we reasoned that the instant merchandise is classified according to its material make-up.
However, in HQ 955650, dated March 14, 1994, we held that bite wing tabs for similar photographic plates were accessories to the X-ray apparatus as they increase the quality of the X-ray itself and thus improved the operation of the instruments with which they were used. Furthermore, other articles placed in or on the patient’s body rather than connected to the x-ray machine itself have been classified as accessories to the x-ray apparatus e.g. absorption filters placed on the patient, HQ 956791, dated July 28, 1994.
The instant merchandise is similar to the bite wings in that by protecting the plate, the x-ray image itself is more likely readable. Furthermore, by rounding the edges for comfort in the patient’s mouth, the plate is more easily positioned. Lastly, the covers are used solely with the photographic plates, which are used solely with the x-ray machines to produce an image. While photographic plates themselves are excluded from classification in the heading (EN 90.22), articles attached to the plates that are used in a way to enhance the function of the x-ray itself, are accessories to the machine. We also note that covers for a CCD/CMOS sensors that transmit the image directly to a computer were classified as accessories to the x-ray apparatus. Although a different technology, we find no difference here with regard to the function of the cover vis-à-vis the x-ray apparatus. Both types of covers keep the image from being distorted and provide comfort in the patient’s mouth so that it may be more easily positioned. Hence, the instant merchandise is an accessory to the X-ray apparatus and therefore meets the terms of heading 9022.
Although heading 3926 indisputably describes the good as an article of plastic, it is excluded from classification in Chapter 39 by virtue of Note 2(u) to Chapter 39. Using GRI 6, the instant articles are classified as accessories to x-ray apparatus, in subheading 9022.90.60, HTSUS.
HOLDING:
The Phosphor Plate Barrier Envelopes are classified in heading 9022, HTSUS. Specifically, they are classified in subheading 9022.90.60, HTSUS, the provision for Apparatus based on the use of X-rays or of alpha, beta or gamma radiations, whether or not for medical, surgical, dental or veterinary uses, including radiography or radiotherapy apparatus, X-ray tubes and other X-ray generators, high tension generators, control panels and desks, screens, examination or treatment tables, chairs and the like; parts and accessories thereof: “Apparatus based on the use of X-rays, whether or not for medical, surgical, dental or veterinary uses, including radiography or radiotherapy apparatus: Other, including parts and accessories:Other: Of apparatus based on the use of X-rays”. The general column 1 rate of duty is .8% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
EFFECT ON OTHER RULINGS:
NY N050327 dated February 20, 2009, is modified.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the CUSTOMS BULLETIN.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division