HQ 951874: Request for Reconsideration of New York Ruling Letter 862514concerning the tariff classification of plastic mesh used inradiation therapy.

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 951874
                        January 15, 1993

CLA-2  CO:R:C:F  951874  STB

CATEGORY: Classification

TARIFF No.: 3926.90.9090

Mr. Arthur M. Rohner
Nuclear Associates
100 Voice Road
P.O. Box 349
Carle Place, NY 11514-0349

RE: Request for Reconsideration of New York Ruling Letter 862514
concerning the tariff classification of plastic mesh used in
radiation therapy.

Dear Mr. Rohner:

     This letter is in response to your request for a
reconsideration of New York Ruling Letter (NYRL) 862514, dated
May 16, 1991, regarding the classification of plastic
immobilization mesh known as "Orfit", used in radiation therapy.
The mesh is from Belgium.  A sample was submitted with your
letter.

FACTS:

     In NYRL 862514, the subject mesh was classified in
subheading 3926.90.9050, Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), the provision for other articles of
plastics, other (current identical provision is 3926.90.9090). 
It is your contention that the mesh should be classified in
subheading 9022.11.0000, HTSUSA, the provision for apparatus
based on the use of alpha, beta or gamma radiations, for medical,
surgical, dental or veterinary uses, including radiography or
radiotherapy apparatus.  

     The subject immobilization mesh is used to create a mask or
form which will position and immobilize a patient during
radiotherapy.  It is used particularly for the head and neck
area.  When heated, the plastic mesh becomes moldable.  It can
then be placed over the patient's head to form a mask which
conforms precisely to his anatomy.  When the mesh cools, it
becomes rigid and retains the newly formed shape.  It is then
used as a restraint during radiation therapy.  This facilitates
repeated accurate positioning during radiotherapy.


                               -2-




ISSUE:

     Whether the plastic mesh should be classified in the
provision for other articles of plastics or in the provision for
X-ray apparatus and parts and accessories thereof?

LAW AND ANALYSIS:

     Classification under the HTSUSA is made in accordance with
the General Rules of Interpretation (GRI's).  The systematic
detail of the harmonized system is such that virtually all goods
are classified by application of GRI 1, that is, 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's may
then be applied.  The Explanatory Notes (EN's) to the Harmonized
Commodity Description and Coding System, which represent the
official interpretation of the tariff at the international level,
facilitate classification under the HTSUSA by offering guidance
in understanding the scope of the headings and GRI's.     
  
     In this instance the subject merchandise can be classified
by reference to GRI 1.  The plastic mesh is classified in
subheading 3926.90.9090, HTSUSA, the provision for other articles
of plastics.  We disagree with your position that the plastic
mesh is properly classified in subheading 9022.11.0000, HTSUSA,
as x-ray apparatus.  Such a classification determination would
require that the mesh qualify as an "accessory" of the apparatus
since the mesh does not fit the description of "apparatus" set
out in the tariff language at heading 9022, HTSUSA, nor is it a
part of such apparatus. 

    The  EN's at 90.22, under the title "Parts and Accessories"
(copy attached), describe four groups of articles that are
included as parts and accessories of X-ray apparatus. The
immobilization mesh does not fit the description of the items and
categories of items described therein.

HOLDING:

     The immobilization mesh known as "Orfit" is classified in
subheading 3926.90.9090, HTSUSA, the provision for other articles
of plastics, other, dutiable at the general column one rate of
duty of 5.3 percent ad valorem.



                               -3-



     NYRL 862514, dated May 16, 1991, is hereby affirmed with the
conforming change in subheading number as indicated.

                           Sincerely,




                           John Durant, Director
                           Commercial Rulings Division