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HQ 223970


September 22, 1992

CON-9-03-CO:R:C:E 223970 JRS

CATEGORY: CONDITIONALLY FREE

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

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