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HQ 956575



September 19, 1994

CLA-2 CO:R:C:M 956575 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9022.90.60

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

Sincerely,

John Durant, Director
Commercial Rulings Division

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