HQ 955025: Pediatric Immobilization System (Octostop II); NY 860228 revoked; Chapter 90, note 2; HQ 087704; THK America, Inc. v. U.S.; Marubeni America Corp. v. U.S.

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

     


 

                            HQ 955025

                          April 29, 1994
                                                               


CLA-2 CO:R:C:M  955025 LTO

CATEGORY:  Classification

TARIFF NO.:  9022.90.60

Mr. Randy Willette
A.N. Deringer, Inc.
30 West Service Road
Champlain, New York 12919-9703

RE:  Pediatric Immobilization System (Octostop II); NY 860228    revoked; Chapter 90, note 2; HQ 087704; THK America, Inc. v.     U.S.; Marubeni America Corp. v. U.S.

Dear Mr. Willette:

     This is in response to your letter of September 13, 1993, on
behalf of Octostop Enterprises, Inc., requesting reconsideration of
NY 860228, dated February 19, 1991, which concerned the
classification of the Octostop II Pediatric Immobilization System
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. No.
103-182, 107 Stat. 2057, 2186 (1993) (hereinafter, "section 625"),
notice of the proposed revocation of NY 860228 was published March
30, 1994, in the Customs Bulletin, Volume 28, Number 13.

FACTS:

     The article in question is a Pediatric Immobilization System,
which is used to maintain a child in a fixed position.  You state
that while the device had been marketed for other uses,  it is
currently used exclusively with X-ray apparatus.  

     In NY 860228, the system was held to be classifiable under
subheading 9018.90.80, HTSUS, which provides for parts and
accessories of instruments and appliances used in medical,
surgical, dental or veterinary sciences.  You contend that the
system is classifiable under subheading 9022.90.60, HTSUS, which
provides for other parts and accessories of apparatus based on the
use of X-rays.
                              - 2 -

ISSUE:

     Whether the Pediatric Immobilization System is classifiable as
other parts and accessories of apparatus based on the use of X-rays
under subheading 9022.90.60, 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 headings at issue are as follows:

     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

*    *    *    *    *    *    *    *    *    *    *    *    *    

     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

     With regard to the classification of parts and accessories for
machines, apparatus, instruments or articles of chapter 90, note 2
to chapter 90 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.                              - 3 -

     Because the Pediatric Immobilization System is not a "good
included" in any heading of chapter 84, 85, 90 or 91, it is
necessary to resort to note 2(b).  You contend that the system is
a specially designed accessory that is solely or principally used
with the apparatus of heading 9022, HTSUS.  

     The Pediatric Immobilization System is not necessary to enable
the X-ray apparatus with which it is used to fulfill its intended
function.  However, by keeping the child immobile, the system does
contribute to the effectiveness of that apparatus.  The system is
therefore classifiable as an "accessory" under chapter 90.  See HQ
087704, dated September 27, 1990. 

     In a letter dated September 7, 1993, the President of Octostop
described the system's components which are specially designed for
use with X-ray apparatus, as follows:
  
     The wood is selected without knots so that it does 
     not cast any shadow on X-ray films . . . ; it is 
     light so as to reduce radiation to babies (as such,
     it complies with FDA requirements of X-ray maximum
     absorption, and an X-ray compliance label is affixed
     to the board); the octagonal form of the loops is 
     selected in order to give exact 45 degree angles of
     views requested for optimal X-ray films; the grove
     [sic] and support are designed to provide a centered
     rotation, so the baby patient does not move outside
     the X-ray beam during examinations.  No such design
     is ever needed in the general medical field.  

     Moreover, you contend that the product was not sold, nor will
it be sold in the future, as a general immobilization  device, as
demonstrated by the total absence of such reference in the most
recent product brochure (1993).  Recently, the Court of
International Trade stated that "[w]hile an importer's catalogs and
advertisements are not dispositive in determining the correct
classification of goods under the HTSUS, they are certainly
probative of the way the importer viewed the merchandise and of the
market the importer was trying to reach."  THK America, Inc. v.
U.S., Slip Op. 93-207; Marubeni America Corp. v. U.S., 821 F.Supp.
1521, 1528 (1993).

     While the system can arguably be used for any medical
procedure that requires the child to remain immobile, based on your
representations concerning its use, and in light of the current
marketing literature, it is our opinion that it is principally used
with the apparatus of subheading 9022.90.60, HTSUS. 
                              - 4 -

HOLDING:

     The Octostop II Pediatric Immobilization System is
classifiable under subheading 9022.90.60, HTSUS, which provides 
for parts and accessories of apparatus based on the use of X-rays. 
The corresponding rate of duty for articles of this subheading is
2.1% ad valorem. 

     In accordance with section 625, this ruling will become
effective 60 days after 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 177.10(c)(1)).

                              Sincerely,




                              John Durant, Director
                              Commercial Rulings Division