CLA-2 CO:R:C:M 956575 KCC
Ms. Ann M. Williams
A.N. Deringer, Inc.
30 West Service Road
Champlain, New York 12919-9703
RE: NY 860125 and NY 860126 revoked; "Bullion" and "Boomerang"
X-ray absorption filters; 4016.99.50; Note 1 and 4(a),
Chapter 40; rubber; synthetic rubber; accessories; Note
2(b), Chapter 90; apparatus based on the use of X-rays; HRL
087704 and 955025
Dear Ms. Williams:
This is in reference to (New York) NY 860125 and NY 860126
issued to you on February 26, 1991, on behalf of Octostop
Enterprises, Inc., which concerned the tariff classification of
X-ray absorption filters under the Harmonized Tariff Schedule of
the United States (HTSUS). Pursuant to section 625, Tariff Act
of 1930 (19 U.S.C. 1625), 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,
2186 (1993) (hereinafter section 625), notice of the proposed
revocation of NY 860125 and NY 860126 was published on August 17,
1994, in the Customs Bulletin, Volume 28, Number 33.
FACTS:
NY 860125 classified the "Bullion", and NY 860126 classified
the "Boomerang" under subheading 4016.99.50, HTSUS, as other
articles of vulcanized rubber other than hard rubber. The
"Bullion" and "Boomerang" are silicone rubber compensating
filters used to even out the density of an X-ray film which would
otherwise be highly over penetrated or under penetrated. These
articles are placed on the appropriate area of the body, such as
the shoulder, to assist radiologists in taking X-rays.
ISSUE:
Whether the "Bullion" and "Boomerang" X-ray absorption
filters are classified under subheading 4016.99.50, HTSUS, as
other articles of vulcanized rubber other than hard rubber.
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is
governed by the General Rules of Interpretation (GRI's). GRI 1,
HTSUS, states, in part, that "for legal purposes, classification
shall be determined according to terms of the headings and any
relative section or chapter notes...."
Subheading 4016.99.50, HTSUS, provides for "Other articles
of vulcanized rubber other than hard rubber...Other...Other...
Other...Other....." The expression "rubber" means the following
products, whether or not vulcanized or hard: natural rubber,
balata, gutta-percha, guayule, chicle and similar natural gums,
synthetic rubber, factice derived from oils and such substances
reclaimed. Note 1, Chapter 40(a), HTSUS. Note 4, Chapter 40,
HTSUS, states that the expression "synthetic rubber" applies to:
Unsaturated synthetic substances which can be irreversibly
transformed by vulcanization with sulfur into non-thermoplastic substances which, at a temperature between 18
degrees Celsius and 29 degrees Celsius, will not break on
being extended to three times their original length and will
return, after being extended to twice their original length,
within a period of 5 minutes, to a length not greater than
1-1/2 times their original length. For the purposes of this
test, substances necessary for the cross-linking, such as
vulcanizing activators or accelerators, may be added; the
presence of substances as provided for by note 5(b)(ii) and
(iii) is also permitted. However, the presence of any
substances not necessary for the cross-linking, such as
extenders, plasticizers and fillers, is not permitted....
Silicone cannot be cross-linked with sulfur. Therefore, the
silicone rubber X-ray absorption filers, "Bullion" and
"Boomerang", do not meet the definitions of "synthetic rubber" or
"rubber" in the notes to Chapter 40, HTSUS. The X-ray absorption
filters are considered to be plastic material for tariff
classification purposes. The "Bullion" and "Boomerang" X-ray
absorption filters cannot be classified as a rubber in Chapter
40, HTSUS.
Heading 9022, HTSUS, provides 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....
With regard to the classification of parts and accessories
for machines, apparatus, instruments or articles of Chapter 90,
HTSUS, Note 2, Chapter 90, HTSUS, provides as follows:
(a) Parts and accessories which are goods included in any of the
headings of this chapter or of chapter 84, 85 or 91...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...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.
Because the "Bullion" and "Boomerang" X-ray absorption
filters are not goods included in any heading of Chapter 84, 85,
90 or 91, HTSUS, it is necessary to resort to Note 2(b), Chapter
90, HTSUS. Octostop contends that the articles at issue are
specially designed accessories that are solely or principally
used with the apparatus of heading 9022, HTSUS.
The term "accessory" is not defined in either the tariff
schedule or the Explanatory Notes of the Harmonized Commodity
Description and Coding System. An accessory is generally an
article which is not necessary to enable the goods with which it
is used to fulfill their intended function. An accessory must be
identifiable as being intended solely or principally for use with
a specific article. Accessories are of secondary or subordinate
importance, not essential in and of themselves. They must,
however, somehow contribute to the effectiveness of the principal
article (e.g., facilitate the use or handling of the principal
article, widen the range of its uses, or improve its operation).
See, Headquarters Ruling Letter (HRL) 087704 dated September 27,
1990.
The "Bullion" and "Boomerang" X-ray absorption filters are
not necessary to enable the X-ray apparatus with which it is used
to fulfill its intended function. However, the articles at issue
are designed to increase the quality of the X-ray, thereby
contributing to the effectiveness of the X-ray apparatus. Based
on the information presented, we are of the opinion that the
"Bullion" and "Boomerang" X-ray absorption filters are
principally used with the apparatus of heading 9022, HTSUS, and
are, therefore, classified under subheading 9022.90.60, HTSUS, as
accessories of apparatus based on the use of X-rays. See also,
HRL 955025 dated April 29, 1994.
HOLDING:
The "Bullion" and "Boomerang" X-ray absorption filters are
classified as other parts and accessories of apparatus based on
the use of X-rays under subheading 9022.90.60, HTSUS.
NY 860125 and NY 860126 are revoked.
In accordance with section 625, this ruling will become
effective 60 days after its publication in the Customs Bulletin.
Publication of rulings or decisions pursuant to section 625 does
not constitute a change of practice or position in accordance
with section 177.10(c)(1), Customs Regulations (19 CFR
177.10(c)(1)).
Sincerely,
John Durant, Director
Commercial Rulings Division