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HQ 955650





March 14, 1994

CLA-2 CO:R:C:M 955650 LTO

CATEGORY: CLASSIFICATION

TARIFF NO.: 9022.90.60

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:

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

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