CLA-2 CO:R:C:M 088755 MBR
District Director
U.S. Customs Service
909 First Ave., Rm 2039
Seattle, WA 98174
RE: Protest Number 3001-90-101381; Toshiba Super Metal X-Ray Image
Intensifier Tubes; X-Ray Apparatus; Medical, Surgical, Dental
or Veterinary Uses
Dear Sir:
This is in response to the Application for Further Review of
Protest Number 3001-90-101381, dated November 26, 1990, on behalf
of Toshiba Electronic Components, Inc., regarding classification
of the "Super Metal X-ray Image Intensifier Tubes," under the
Harmonized Tariff Schedule of the United States Annotated (HTSUSA).
FACTS:
The protestant states that the "Toshiba Super Metal X-Ray
Image Intensifier Tube" is a device exclusively designed to convert
X-ray photons emitted by an X-ray tube into normal light photons
and, in turn, convert these photons into visible light for the
purpose of rendering an X-ray image visible for medical diagnostic
utilization. Specifically, it is used to increase the range and
quality of the X-ray images upon which today's medical
practitioners rely as medical diagnostic tools while reducing the
amount of harmful X-rays required to achieve a diagnostically
useful image.
The X-ray image intensifier is that part of the X-ray
apparatus which first receives the X-rays after they have
irradiated the particular body segment being examined. The X-ray
image intensifier then converts X-ray photons into normal light
photons by means of an X-ray incident window through which the X-
ray enters a Cesium Iodide ("CsI") input phosphor screen. This
conversion is essential to the function of the device: to provide
the optimal diagnostic images while ensuring the safety of the
patient and the X-ray technicians.
-2-
The Toshiba X-ray image intensifier is specially engineered
with a thick input phosphor screen whose columnar CsI crystals
capture and convert to normal light photons a greater percentage
of available X-ray photons than X-ray equipment which does not
include the specifically designed X-ray image intensifier
apparatus. CsI crystals are specifically used, as they exhibit a
"vertical taming" effect which enhances the X-ray image, as photons
striking a horizontal crystal mass exhibit less penetration and
more random photon loss.
The design of the Image Intensifier is constant, and the model
numbers change to reflect the diameter of the input phosphor screen
and aluminum window for a given diagnostic purpose: thicker tissue,
for example, requires a wider screen and window.
Typically, an X-ray Image Intensifier is connected to a still
camera or television camera (depending on the diagnostic need)
which produces the final picture.
ISSUE:
What is the classification of the "Toshiba Super Metal X-ray
Image Intensifier Tube," under the Harmonized Tariff Schedule of
the United States Annotated (HTSUSA)?
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) to the HTSUSA
govern the classification of goods in the tariff schedule. GRI 1
states, in pertinent part:
...classification shall be determined according to the terms
of the headings and any relative section or chapter notes...
The Image Intensifier Tubes were entered under subheading
8540.20.20, HTSUSA, which provides for: "[t]hermonic, cold cathode
or photocathode tubes...: [t]elevision camera tubes; image
converters and intensifiers: [c]athode-ray tubes." The protestant
claims that the merchandise is properly classifiable under
subheading 9022.11.00, HTSUSA, which provides for: "[a]pparatus
based on the use of X-ray 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,...desks, screens, examination or treatment
tables, chairs and the like: [a]pparatus based on the use of X-
rays...: [f]or medical, surgical, dental or veterinary uses."
The protestant argues that "the Toshiba 'Super Metal X-ray
Image Intensifier' [is] exclusively designed to convert X-rays
generated by an X-ray tube into visible light primarily for medical
diagnostic applications" and as such, is "apparatus based on the
use of X-rays."
-3-
The U.S. Court of International Trade has construed the term
apparatus on frequent occasions. See ITT Thompson Industries, Inc.
v. U.S., 537 F.Supp. 1272, U.S. v. Wyman & Co., 2 Ct. Cust. Appls.
440, T.D. 32200 (1912); J.E. Bernard & Co., Inc v U.S., 62 Cust.
Ct. 537, C.D. 3882 (1969), aff'd 58 CCPA 91, C.A.D. 1009, 436 F.
2d 506 (1971). The court in ITT, page 44, stated:
Generally, the court has consulted standard lexicons to arrive
at a definition for apparatus. Basically, these lexicons are
in agreement that the term apparatus is collective in the
sense that it is intended to encompass a group of devices or
a collection or set of materials, instruments or appliances
to be used for a particular purpose or a given end.
The ITT court cited the following lexicons and definitions:
Webster's Third New International Dictionary, (1963) defines the
term "apparatus" as follows (at 102):
2. a: a collection or set of materials, instruments,
appliances, or machinery designed for a particular
use * * *
b: any compound instrument or appliance designed for
a specific mechanical or chemical action or
operation * * *
Century Dictionary, defines "apparatus" as follows:
* * * an equipment of things provided and adapted as a means
to some end; especially a collection, combination, or set of
machinery, tools, instruments, utensils, appliances, or
materials, intended, adapted, and necessary for the
accomplishment of some purpose, such as mechanical work,
experimenting, etc.; as, chemical philosophical, or surgical
apparatus.
Funk & Wagnalls Standard Dictionary (International Edition, 1963)
defines "apparatus" as follows:
A complex devise or machine for a particular purpose.
The ITT court applied these definitions to electrical sockets
and determined that they were "apparatus" as that term is
understood by the court. Therefore, clearly the instant, complex,
high technology, "Toshiba Super Metal X-ray Image Intensifier
Tubes" also fall within the broad scope of the term "apparatus."
Section XVI, chapter 85, subheading 8540.20.20, HTSUSA,
provides for: "[t]hermonic, cold cathode or photocathode tubes...:
[t]elevision camera tubes; image converters and intensifiers:
[c]athode-ray tubes." It is not clear if this provision was even
-4-
intended to include apparatus based on the used of X-rays.
However, the Legal Notes to Section XVI state:
1. This section does not cover:
(m) Articles of chapter 90
Therefore, since the instant merchandise is classifiable in
chapter 90 as "apparatus based on the use of X-rays," it is not
classifiable in chapter 85.
The question has been raised whether chapter 90, Legal Note
2(a), has any bearing on the instant classification. However,
Legal Note 2(a) governs the classification of "parts and
accessories for machines, apparatus, instruments or aticles of this
chapter." Whereas, the instant merchandise is determined to be
apparatus based on the use of X-rays, and not "parts and
accessories" of such apparatus. Therefore, chapter 90, Legal Note
2(a), does not apply to the instant classification.
Therefore, Toshiba Super Metal X-ray Image Intensifier is
classifiable as "apparatus based on the use of X-rays...for
medical, surgical, dental or veterinary uses..." provided for in
heading 9022, HTSUSA.
HOLDING:
The Toshiba Super Metal X-ray Image Intensifier is properly
classifiable under subheading 9022.11.00, HTSUSA, which provides
for: "[a]pparatus based on the use of X-ray 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,...desks, screens,
examination or treatment tables, chairs and the like; parts and
accessories thereof: [a]pparatus based on the use of X-rays...:
[f]or medical, surgical, dental or veterinary uses."
The protest should be granted in full. A copy of this
decision should be attached to the Customs Form 19 and provided to
the protestant as part of the notice of action on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division