CLA-2 CO:R:C:M 951225 NLP
Mr. R.R. McIntyre
DuPont Canada, Inc.
Box 2200, Streetsville
Mississauga, Ontario L5M 2H3
RE: Radiation protection apparel; radiation protection core
material; antimony powder; heading 9022; Explanatory Note
90.22; HRL 085277; GRI 3(b)
Dear Mr. McIntyre:
This is in response to your letter dated February 21, 1992,
requesting the tariff classification of radiation protection
apparel and its core material under the Harmonized Tariff
Schedule of the United States (HTSUS).
FACTS:
Descriptive literature and samples of the core material were
submitted for our review. The core material of the radiation
protection apparel is made up of the following:
Material % by weight % by value
(in sheet/roll form)
antimony powder 53 53
lead powder 28 6
tungsten powder 7 15
EVA co-polymer 7 2
plasticizer 5 1
The materials above are mixed and processed into sheet form.
The core material is applied in layers in order to provide
additional flexibility to the fabric. The sheets are laminated
with PVC coated fabric material and are cut into pieces and
assembled into various forms including the following: coats,
vests, skirts, aprons, gonad and thyroid shields.
The above formulation of components makes the apparel less
weighty, which provides greater comfort to the wearers and still
provides protection against x-rays. The radiation protection
apparel is worn by radiologists and technologists who work in
proximity to patients receiving x-rays.
ISSUE:
What is the HTSUS classification of the core material for
the radiation protection apparel?
What is the HTSUS classification for the radiation
protection apparel?
LAW AND ANALYSIS:
The classification of goods under the HTSUS is governed by
the General Rules of Interpretation (GRI's), taken in order. GRI
1 provides that classification shall be determined according to
the terms of the headings 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 be applied, taken in
order.
Heading 9022, HTSUS, provides, in part, for apparatus based
on the use of x-rays, whether or not for medical, surgical,
dental or veterinary uses, including parts and accessories
thereof. If the subject articles are considered to be parts or
accessories as those terms are used in heading 9022, HTSUS, then
they are classified in heading 9022, HTSUS. Headquarters Ruling
Letter (HRL) 085277, dated November 2, 1989, dealt with the
classification of radiation protection apparel that is
essentially the same as the subject merchandise, except that
barium tungstate, instead of antimony, was the main component of
the core material. HRL 085277 stated that protective apparel of
this type was not a "part or accessory" of heading 9022, HTSUS.
This was substantiated by the Harmonized Commodity Description
and Coding System (HCDCS) Explanatory Notes to heading 9022, page
1502, which state, in pertinent part, that:
The heading does not, however, cover, protective devices
designed to be worn by the operator, such as overalls or
gloves of lead-filled rubber (heading 40.15) or lead-glass
goggles (heading 90.04).
HRL 085277 held that the subject apparel was considered to be a
protective device and the intent of the Explanatory Notes was to
exclude this type of merchandise. Therefore, the radiation
protection apparel was not classified in heading 9022, HTSUS.
Like the radiation protection apparel in HRL 085277, the
subject radiation apparel is a composite good as it is composed
of several different materials. GRI 2 addresses classification
of composite goods and states the following, in pertinent part:
(b) ... Any reference to goods of a given material or
substance shall be taken to include a reference to
goods consisting wholly or partly of such material or
substance. The classification of goods consisting of
more than one material or substance shall be according
to the principles of rule 3.
GRI 3 states, in pertinent part, the following:
When, by application of rule 2(b) or for any other
reason, goods are, prima facie, classifiable under two or
more headings, classification shall be effected as follows:
(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.
HCDCS Explanatory Note VIII to GRI 3(b), page 4, states
that:
(VIII) The factor which determines essential
character will vary as between different kinds
of goods. It may, for example, be determined
by the nature of the material or component, its
bulk, quantity, weight or value, or by the
role of a constituent material in relation to
the use of the goods.
The essential character of the various types of radiation
protection apparel is conferred upon the articles by their
protective features embodied in the core material. Without the
radiation protection provided by the lead and antimony powder in
the core material, the subject merchandise would not have any use
as protective apparel. We note that the plastic and textile
elements contribute significantly less to the merchandise by
virtue of their weight or value.
Of the headings which merit consideration under GRI 3(b),
heading 7806, HTSUS, is the provision into which these items
would fall if the essential character is determined to be the
lead. If the essential character is represented by the antimony
powder, then heading 8110, HTSUS, would be the correct HTSUS
provision. It is our position that the antimony powder provides
the essential character of the core material and the radiation
protection apparel. The substitution of antimony for the barium
tungstate allows equivalent protection from x-rays together with
a reduction in the weight of the apparel, providing greater
comfort to the wearer. The antimony powder comprises the
majority of the composite material based on its weight and value.
These factors together with the increased qualitative function of
the antimony powder impart the essential character of this
article, whether in the form of core material or finished
apparel. Therefore, the core material and the finished radiation
protection apparel are classified in subheading 8110.00.00,
HTSUS, as antimony and articles thereof.
HOLDING:
The core material and the radiation protection apparel are
classified in subheading 8110.00.00, HTSUS, as antimony and
articles thereof. Products that are classified in this
subheading are entitled to entry free of duty.
Sincerely,
John Durant, Director
Commercial Rulings Division