CLA-2 CO:R:C:M 955650 LTO
District Director
U.S. Customs Service
1 E. Bay Street
Room 104
Savannah, Georgia 31401
RE: Protest No. 1704-93-100444; "FL500" Flaps bite-wing tabs;
Chapter 90, note 2; HQ 087704; NY 837956; heading 3921;
heading 9018; EN 90.18
Dear District Director:
The following is our decision regarding the request for
further review of Protest No. 1704-93-100444, which concerns the
classification of "FL500" Flaps bite-wing tabs under the
Harmonized Tariff Schedule of the United States (HTSUS). The
subject merchandise was entered on March 17, 1993, and May 12,
1993, and the entries were liquidated on July 16, 1993. The
protest was timely filed on October 5, 1993.
FACTS:
The articles in question are the "FL500" Flaps bite-wing
tabs, which are used to hold X-ray film in place in the patient's
mouth while an X-ray of the teeth is taken. The tabs are made of
foamed polyurethane plastics. They are in the form of
rectangular pieces measuring approximately one inch by 3/4 inch
by 1/4 inch. An adhesive material on one side allows the tabs to
be attached to the X-ray film. The patient bites down on the
foam, holding the film in the correct position in the mouth
during X-rays.
The bite-wing tabs were entered under subheading 9018.49.80,
HTSUS, as other instruments and appliances used in dental
sciences. They were classified upon liquidation under subheading
3921.19.00, HTSUS, which provides for other plates, sheets, film,
foil and strip of plastics. - 2 -
ISSUE:
Whether the "FL500" Flaps bite-wing tabs are classifiable as
other instruments and appliances used in dental sciences under
subheading 9018.49.80, HTSUS.
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) to the HTSUS
govern the classification of goods in the tariff schedule. GRI 1
states in pertinent part that "for legal purposes, classification
shall be determined according to the terms of the headings and
any relative section or chapter notes . . . ."
The subheadings at issue are as follows:
3921 Other plates, sheets, film, foil and
strip, of plastics:
Cellular:
3921.19.00 Of other plastics (6.6%)
* * * * * * * * * * * * *
9018 Instruments and appliances used in
medical, surgical, dental or veterinary
sciences, including scintigraphic
apparatus, other electro-medical
apparatus and sight-testing instruments;
parts and accessories thereof:
Other instruments and appliances,
used in dental sciences, and parts
and accessories thereof:
Other:
9018.49.80 Other (4.7%)
* * * * * * * * * * * * *
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:
Other, including parts and
accessories:
- 3 -
Other:
Parts and accessories:
9022.90.60 Of apparatus based on the use
of X-rays (2.1%)
It has been suggested that the bite-wing tabs are
classifiable as accessories of apparatus based on the use of X-
rays under heading 9022, HTSUS. The bite-wing tabs are not
necessary to enable the X-ray apparatus with which they are used
to fulfill their intended function, as the instruments would
operate and handle effectively without them. However, by holding
the film in the correct position, the bite-wing tabs increase the
quality of the X-ray procedure. Accordingly, because they
improve the operation of the instruments with which they are
used, it is our opinion that the bite-wing tabs are
"accessories," and therefore, prima facie classifiable under
heading 9022, HTSUS. See HQ 087704, dated September 27, 1990.
Note 2 to chapter 90 governs the classification of parts and
accessories under chapter 90. Note 2(a) 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 (other than heading 8485,
8548 or 9033) are in all cases to be classified
in their respective headings [emphasis added].
Because the bite-wing tabs are not "goods included" in any
chapter 84, 85, 90 or 91 heading, it is necessary to resort to
note 2(b). Moreover, because the bite-wing tabs are chapter 90
accessories, they are not classifiable in chapter 39 even if
described by a chapter 39 heading, as the chapter is not listed
in note 2(a).
Note 2(b) provides as follows:
(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.
According to note 2(b), the bite-wing tabs, which are solely
or principally used with the X-ray apparatus of heading 9022, are
classifiable under subheading 9022.90.60, HTSUS.
As for the entered classification, the terms of heading
9022, HTSUS, as well as the relevant Harmonized Commodity - 4 -
Description and Coding System Explanatory Notes (EN), preclude
classification of the bite-wing tabs under heading 9018, HTSUS.
Heading 9022, HTSUS, provides for apparatus, and parts and
accessories thereof, based on the use of X-rays, whether or not
for dental uses. Moreover, EN 90.18, pgs. 1488, 1491, states
that heading 9018, HTSUS, does not cover the X-ray apparatus,
etc., of heading 9022, HTSUS. Accordingly, the bite-wing tabs
are classifiable as accessories of apparatus based on the use of
X-rays under subheading 9022.90.60, HTSUS. See also NY 837956,
dated March 29, 1989 (repositionable bite-wing X-ray film holder
kit consisting of an X-ray beam aiming ring, stainless steel
connecting rod and two repositionable bite-wing film holders were
held to be classifiable under subheading 9022.90.60, HTSUS).
HOLDING:
The "FL500" Flaps bite-wing tabs are classifiable under
subheading 9022.90.60, HTSUS.
The protest should be GRANTED. In accordance with section
3A(11)(b) of Customs Directive 099 3550-065, dated August 4,
1993, Subject: Revised Protest Directive, this decision, together
with the Customs Form 19, should be mailed by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with the decision
must be accomplished prior to the mailing of the decision. Sixty
days from the date of the decision the Office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS and the public
via the Diskette Subscription Service, Lexis, Freedom of
Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division
cc: NIS Joan Mazzola
NIS Robert Losche