CON-9-03-CO:R:C:E 223970 JRS
District Director of Customs
111 West Huron Street
Buffalo, New York 14202-2378
RE: Entry of Mobile X-ray Unit from Canada; Professional
Equipment and Tools of Trade; 9813.00.50, HTSUS; 19 CFR
10.36(a)
Dear Mr. McMullen:
This is in response to your memorandum of May 11, 1992
(FILE: BOR-2-01:DD:CNT) wherein you request a ruling on the
above-referenced subject. Our decision follows.
FACTS:
A Canadian-based firm operates a mobile x-ray service in
western New York. The mobile unit drives across the border each
day to service its various accounts in the United States such as
nursing homes, detention centers and private homes. Equipment
mounted on the vehicle is a necessary part of the operation which
is used in conjunction with portable parts which are taken inside
to the client. All of the equipment was purchased in Canada;
however, it was manufactured in the United States and exported to
Canada for sale and distribution. We note that the company is
licensed by the State of New York.
The company would like to enter the mobile x-ray equipment
under the provisions of a baggage TIB for duty-free entry as
tools of trade. Your office believes that this equipment does
not qualify under subheading 9813.00.50, Harmonized Tariff
Schedule of the United States (HTSUS), since it is your opinion
that tools of trade should be limited to tools or equipment
unique to a person or skilled trade and that the company may be
in violation of the point-to-point traffic regulations.
ISSUE:
Is a mobile x-ray unit eligible to qualify as professional
equipment or tools of trade under subheading 9813.00.50, HTSUS?
LAW AND ANALYSIS:
Subheading 9813.00.50, HTSUS, provides for the temporary
entry free, under bond, of professional equipment, tools of
trade, repair components for equipment or tools admitted under
this heading and camping equipment, imported by or for
nonresidents sojourning temporarily in the United States and for
use of such nonresidents.
Articles may not be imported for sale or sale on approval
and may remain in this country, without the payment of duty, for
a period of one year from the date of importation. However, upon
application to the district director at the port where the entry
is filed, this period may be extended for one or more further
periods which, when added to the initial one year, shall not
exceed a total of three years. See U.S. Note 1(a) of Subchapter
XIII, HTSUS. Under U.S. Note 1(b) of Subchapter XIII, entry
shall be made by the nonresident importing the articles or by an
organization represented by the nonresident which is established
under the laws of a foreign country or has its principal place of
business in a foreign country. Customs has consistently held
that entry under subheading 9813.00.50, HTSUS (former item
864.50, TSUS) is personal to the nonresident and is
nontransferable and terminates when the nonresident ceases to use
the imported merchandise.
Section 10.36(a) of the Customs Regulations (19 CFR
10.36(a)) permits that professional tools imported in the baggage
of the arriving nonresident may be entered on the importer's
baggage declaration in lieu of formal entry and examination and
may be passed at the place of arrival in the same manner as other
baggage. In that case, the bond is without surety or cash
deposit. In the discretion of the district director, however, a
formal entry under subheading 9813.00.50, HTSUS, with a bond
supported by a surety or cash deposit in lieu of surety (which is
refunded upon exportation of the article) may be required. The
amount of the bond posted under subheading 9813.00.50, HTSUS, is
equal to 110 percent of the estimated duty determined at the time
of entry.
As you probably know, the U.S./Canadian Free Trade Agreement
(FTA) eliminated the bond requirement for articles originating in
Canada and admitted temporarily free of duty under the provisions
of Subchapter XIII of the HTSUS. We have previously ruled that
although the bond requirement was eliminated, the other
conditions attached to temporary importation under bond, i.e.,
the exportation requirement and prohibition on sale (see 19 CFR
10.31-10.40), remain in effect under the FTA. See Headquarters
Ruling Letter 221797 GG, October 13, 1989 (copy enclosed). In
the absence of a bond, Customs is unable to impose liquidated
damages on a party who does not abide by the conditions.
However, an intent by the importer at the time of importation to
sell the merchandise or not to export or destroy at the end of
the bond period is actionable under 19 U.S.C. 1592.
Equipment under subheading 9813.00.50, HTSUS is intended
to be necessary for the exercise of the calling, trade, or
profession of a person visiting this country to perform a
specific task. The type of articles allowed admittance under
this tariff provision have been varied and numerous due to the
liberal construction given to the terms "professional equipment"
and "tools of trade". We have ruled recently that a mobile paper
shredding unit qualified under subheading 9813.00.50, HTSUS. See
HQ 222651 PH, January 7, 1991 (copy enclosed). In the case at
hand, we believe that the taking of x-rays by x-ray technicians
is an exercise of a profession and thus it falls within the scope
of subheading 9813.00.50, HTSUS; therefore, we consider the
mobile x-ray unit and equipment to be professional equipment and
tools of trade which qualify under this subheading.
Customs has approved over the years a variety of articles as
qualifying as professional equipment and tools of trade (for
example: a mobile education vehicle for conducting educational
program for dealers; a van with permanently attached equipment of
hydraulic tracer controls for machine tools admitted for
demonstration tours in the United States; drilling equipment
which is temporarily attached to a barge for use in underwater
digging operations; rigging equipment used in the installation of
offshore platforms which is not permanently affixed to any
vessel, rig or platform; chain saws for pulp or logging
operations; diesel tractors for logging operations; television
receivers for showing methods of installation and servicing;
transmitter-receiver (portable type) for broadcasting from an
aircraft; photographic plates for cosmic ray studies). Please
note that tools of trade admitted temporarily free of duty under
subheading 9813.00.50, HTSUS, should not be confused with the
personal exemption for tools of trade extended to emigrants under
19 CFR 148.53 (subheading 9804.00.15).
It is within your discretion to deny the use of a baggage
TIB for the entry of the mobile x-ray unit pursuant to 19 CFR
10.36(a). A district director may permit small items that can be
carried in an importer's baggage (e.g., small microscope for
medical studies) to be included on a baggage declaration while
requiring large items, such as heavy construction equipment, to
be entered under a formal TIB entry. You have the prerogative to
require either an informal or formal TIB entry for the mobile x-
ray unit although no bond is required for "goods originating in
the territory of Canada" as defined in General Note 3(c)(vii)(B),
HTSUS.
We agree with your statement that if an entry is made by the
Canadian company the x-ray equipment would be subject to the Food
& Drug Administration's regulations (see 19 CFR 12.91) and the
vehicle would be subject to the Department of Transportation's
safety and bumper standards (see 19 CFR 12.80) and the
Environmental Protection Agency's pollution standards (see 19 CFR
12.73) unless there is an exemption provided for in those
statutes. We recommend that you have the inquirer send a copy of
this ruling along with a copy of his incoming letter to the DOT
and EPA and ask for a written determination whether this
situation qualifies under an appropriate exemption and, if so,
whether the nonresident's vehicle which crosses the U.S./Canada
border daily (making numerous entries during the TIB period)
rather than remaining in the United States for the entire one-
year period, would need a declaration (DOT Form HS-7, Box 5; EPA
Form 3520-1, Miscellaneous Entry Categories "O") authorizing the
vehicle's importation on each and every entry into the United
States.
The restrictions on the use in local traffic (sometimes
called "point-to-point" traffic) (see 19 CFR 123.14(c)) are not
applicable to goods which are entered under Chapter 98, HTSUS,
since such articles are not engaged in international traffic but
rather are imported.
HOLDING:
A mobile x-ray unit (a vehicle outfitted with both affixed
and portable x-ray equipment) may temporarily be brought into the
United States under subheading 9813.00.50, HTSUS, in order to
perform its service of taking x-rays provided that the conditions
of U.S. Note 1(a) and (b) of Subchapter XIII, HTSUS, and 19 CFR
10.31-10.41, as applicable, are met.
Sincerely,
John A. Durant, Director
Commercial Rulings Division