RR:CR:GC 965641 JLV
Director, Port of Anchorage
U.S. Customs Service
606 W. Fourth Ave
Anchorage, AK 99501
RE: Protest No. 3195 01 100421; BGO crystals; CWO crystals; crystal arrays; detectors; detector modules
Dear Port Director:
You have forwarded Protest No. 3195 01 100421, filed on October 2, 2001, against your decision on the classification of certain single crystals, crystal arrays, detectors and detector modules. Our decision follows.
FACTS:
Protest No. 3195 01 100421 was filed by counsel on behalf of Nihon Kessho Koogaku (USA), Inc. ("NK&K"). The protest, filed on October 29, 2001, concerns 23 entries which were liquidated between the period of August 3 through October 5, 2001. The entries are listed in Exhibit 1 of the protest. The protest concerns your classification of certain crystals as inorganic products of a kind used as luminophores in subheading 3206.50, Harmonized Tariff Schedule of the United States (HTSUS), and certain crystal arrays, detectors and detector modules as apparatus for measuring or detecting ionizing radiations in subheading 9030.10, HTSUS.
Two general categories of inorganic scintillation crystals are at issue. One category includes crystals that are imported in a condition ready for use as single scintillator crystals. The second category appears to consist of crystals that have been sliced from larger crystal blanks and are used in the assembly of arrays.
In the first category is a single cylindrical bismuth germanium oxide ("BGO") crystal, that is said to have been machined to precise specifications (cut, ground and polished) for use in a detector for oil well exploration. According to the invoice with the entry, it measures 3 inches by 4 inches. A BGO crystal, when exposed to gamma radiation, fluoresces. A sample identified as Exhibit 1 7A is a single BGO crystal that measures 2 x 8 inches. However, the ends of the sample BGO crystal do not appear to have been cut to a precise flat surface. Therefore, the sample does not match the description of the specific BGO crystal that was imported (i.e., machined to precise specifications).
The second category includes cadmium tungstate ("CWO") crystals which are used to make arrays used in CT scanners for medical diagnosis or in security purposes (luggage scanners). Protestant did not specify the size or weight of these crystals and did not submit samples of the individual CWO crystals. However, based on (a) the information from the entry documents (value, gross weight, number of individual units in one shipment) and (b) the description of "cultivated crystals" on page 8 of counsels submission of March 8, 2002, it appears that these are crystals that have been fully cut to dimension (length, width, pixel size), cleaned and polished. They are ready for assembly into arrays. This was confirmed in a telephone call with counsel for protestant. Counsel further indicated that the individual CWO crystals are separated only by packing material, and that the customer inserts the reflective layer when assembling the linear arrays.
A crystal array is an assembly of individual crystals separated by layers of light blocking material. An array may be assembled from individual crystals (as described above) or by a laminated method. Protestant's Exhibit 20 provides a description of the production process using the laminated method: (1) crystal blanks are cut into slices, the thickness of which is determined by the pixel size of the finished array; (2) cleaning and stacking of the slices with a light blocking laminate between the slices where the number of slices in the stack is determined by the number of receptors in the final array; and (3) slicing the stack into slices of a thickness equal to the finished pixel thickness of the linear crystal array to be used in the assembly of a detector. The end of each crystal in a finished linear crystal array has a specific pixel size (e.g., 0.2 mm) and the length of each crystal is relatively longer (e.g., 5.0 mm or more). In some cases there may be a fourth step if the finished crystal array is to have two or more stacked rows of receptors in the array (two dimensional). In either case, the crystal array is trimmed, lapped and polished, and, in some cases, covered with a reflective film. Samples identified as Exhibit 1 7B include samples of CWO 24 and 16 channel linear arrays and a two dimensional 4x4 array made from cesium iodide ("Csl") crystals or Csl crystals doped with thallium which are used in gamma ray cameras for medical diagnosis.
A detector is described by counsel for protestant NK&K as consisting of a crystal array bonded to a photodiode on a ceramic base. Samples of a 32 channel detector and 20 channel detector (Exhibits 17B and 17C of the submission by counsel). The detectors function to convert the light emitted from the crystal arrays into electrical charges for transmission and processing by the computer of a scanner. The sample identified as Exhibit 17C is a sample of a detector for a CT scanner.
A detector module is described by counsel for protestant NK&K a' consisting of detectors mounted on a daughterboard. The daughterboard includes a pre amplifier, power and switching circuitry for the detectors, and electrical and light shielding. Each detector module is completely assembled, tested and ready to be plugged into the motherboard of the gantry of a CT scanner. The gantry contains many detector modules arranged in an annular ring and the X ray tube. A diagram of one type of detector module, which appears to incorporate a 20 element crystal array, is provided in Exhibit 22 of the protest. The function of the detector module is to record the radiation that passes through the body and emit flashes of light in proportion to the amount of radiation received (scintillations). These scintillations provide the data (i.e., brightness and location) which are then transmitted and processed by the CT scanner. A sample identified as Exhibit 17D is a sample of a detector module for a CT scanner.
The protestant argues (1) that the detector modules, detectors and crystal arrays are properly classified in subheading 9022.18 or 9022.90.25, HTSUS, as apparatus, (2) that the crystals are properly classifiable in subheading 9022.90.60, HTSUS, as parts of apparatus of heading 9022, and (3) that the treatment of the detector modules cannot be changed without compliance with the requirements of 19 U.S.C. 1625(c) because the decision in HQ 955892 (1994) is still in effect with regard to the protestant's entries of detector modules.
The CWO crystals, CWO crystal arrays, Csl crystal arrays, detectors and detector modules were, in the substantial majority of cases, entered under subheading 9022.90.60 as parts of apparatus of heading 9022. The BGO crystals were entered under subheading 9030.90.88 as parts of apparatus of heading 9030. Upon review of the products and claimed classifications, Customs took the position that the BGO crystals and the CWO crystals were classifiable in subheading 3206.50 as inorganic products of a kind used as luminophores. Customs concluded that the other goods were parts of the apparatus of heading 9022. Because these goods satisfied the terms of heading 9030 as apparatus for measuring or detecting alpha, beta, gamma X ray, cosmic pr other ionizing radiations, they were classifiable in subheading 9030.10 by application of Note 2 to Chapter 90, HTSUS. Customs gave appropriate notice on Customs Form 29 as to the rate advances and liquidated the entries accordingly.
ISSUE:
(1) What is the classification of the crystals, crystal arrays, detectors and detector modules?
(2) Does the decision in HQ 955892 apply to the treatment of detector modules regardless of the fact that the correct classification may be otherwise?
LAW AND ANALYSIS:
The classification of each item must be addressed separately. If any of these are determined to be an apparatus of heading 9022, then classification of that item would be in heading 9022 unless specifically excluded by legal note or language that would direct otherwise. If the item is determined to be a part of apparatus of heading 9022, then Note 2 to Chapter 90 must be addressed.
For purposes of the discussion, we are inserting the texts of the classification provisions that are under consideration. The goods were entered under HTSUS 2000. Therefore, the texts are from the HTSUS of that year. We note that, for purposes of HTSUS 2002, there has been no substantive change in the provisions under consideration. The relevant tariff provisions in Chapter 90, HTSUS (2000), are:
Heading 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: * * *
Heading 9030:
Oscilloscopes, spectrum analyzers and other instruments and apparatus for measuring or checking electrical quantities, excluding meters of heading 9028; instruments and apparatus for measuring or detecting alpha, beta, gamma, X- ray, cosmic or other ionizing radiations; parts and accessories thereof: * * *
Note 2 to Chapter 90:
2. Subject to note 1 above, parts and accessories for machines, apparatus, instruments or articles of this chapter are to be classified according to the following rules:
(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;
(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;
(c) All other parts and accessories are to be classified in heading 9033.
The relevant provisions in Chapter 32, HTSUS, are:
Note 1 (a) to Chapter 32:
1. This chapter does not cover:
(a) Separate chemically defined elements or compounds (except those of heading 3203 or 3204, inorganic products of a kind used as luminophores (heading 3206), glass obtained from fused quartz or other fused silica in the forms provided for in heading 3207, and also dyes and other coloring matter put up in forms or packings for retail sale, of heading 3212); * * *
Heading 3206:
Other coloring matter; preparations as specified in note 3 to this chapter, other than those of heading 3203, 3204 or 3205; inorganic products of a kind used as luminophores, whether or not chemically defined: * * *
Classification is determined, in the first instance, at the heading level according to the terms of the headings and any relative section or chapter notes. See General Rule of Interpretation 1, HTSUS. In other words, the good must meet the terms of a heading before classification in that heading can be considered.
1. Classification
Detector modules
In HQ 955892 (March 3, 1994) a radiological image detector module assembly containing 40 detectors was classified in subheading 9022.90.20, HTSUS (1993) as "apparatus" other than x ray tubes, apparatus based on the use of alpha, beta or gamma radiations or apparatus based on the use of X rays. Amendments to the HTSUS in 1996 divided the goods of subheading 9022.90.20 into three subheadings in order to provide specifically for radiation generator units (9022.90.05) and radiation beam delivery units (9022.90.15), with the remainder, "other apparatus" classifiable in subheading 9022.90.25. This tariff provision was not changed in the 2002 HTSUS. The ruling addressed the question as to whether the detector modules were "apparatus" and concluded that they satisfied the meaning of the term and, further, because they were apparatus, Note 2(a) to Chapter 90 was not applicable.
For purposes of this discussion, we do not disagree with comment that the term "apparatus" may have a broad interpretation. What is relevant to the classification of a good in the HTSUS (when that good is also a part of a good)1is whether the good is also an apparatus within the meaning of the terms of the same heading that provides for the good of which it is a part.
In this case the following question must be asked concerning the detector module which is a receptor or detector of radiation used in apparatus of heading 9022 and which is recognized as being a part of an imaging apparatus of heading 9022: if the detector module is not an apparatus based on the use of X rays or of alpha, beta or gamma radiations, can it be classified in heading 9022 under terms of the additional language "including radiography or radiotherapy apparatus, X -ray tubes and other X ray generators, control panels and desks, screens, examination or treatment tables, chairs and the like" in heading 9022 (underscoring added for emphasis)? If not, then the detector modules would be classifiable as parts of apparatus of heading 9022, and Note 2 to Chapter 90 would apply.
When used in the description of goods of a heading, broad terms such as "apparatus" may present a problem, especially when the heading also provides for parts of such apparatus. Arguably, even parts are "apparatus" in the ordinary sense of the term.
In this case, it is our opinion that the detector module, which is a basic element in the receptor assembly in the gantry, is not an "apparatus" within the meaning of heading 9022. It is not like the other named components, such as an X ray tube, generator, control panel or screen, which function as distinct components of the apparatus of heading 9022. In HQ 952358 (October 13,1992) we classified an X ray image intensifier tube as an apparatus of heading 9022.90.20, HTSUS (1992). The image intensifier tube consisted of a tube, high tension generator and test plate enclosed in a housing. The intensifier tube was used with an optical device (attached to the tube) in order to display the image that was generated by the intensifier tube from radiation from an X ray machine. As such, the image intensifier was held to be classifiable as an apparatus, arguably in the same manner as a high tension generator.
The detector module is an X ray receptor device that detects individual radiations (scintillations) and converts them to light that is then converted to electrical signals which provide data as to the brightness and location of the scintillations. These signals are then used and processed, in this case, by a CT scanner to create an image. The detector module is that part of a the receptor system in a CT scanner that merely detects and converts the degree of radiation that has passed through an object. It is not a separate apparatus of heading 9022. We note that the EN 9022(III), (A) through (F) on pages 1819 to 1820 of the Explanatory Notes to the Harmonized Commodity Description and Coding System (HS), Third Edition (2002), describes various "apparatus" that are classifiable as apparatus in heading 9022. Items (A) through (F) describe devices which either generate an X ray beam or other radiation, or which function as a display, control system or furniture specialized for X ray work. A detector module is not like these apparatus. It is, however, a necessary and essential component of a CT scanner and, therefore, satisfies the basic test for a "part" of a good.
Note 2 to Chapter 90 directs classification of parts of apparatus of heading 9022 to that heading if they are solely or principally used with such apparatus, provided that the parts are not goods of another heading of chapter 84, 85, 90 or 91. Heading 9030 in Chapter 90 provides, in pertinent part, "for instruments and apparatus for measuring or detecting alpha, beta, gamma, X ray, cosmic or other ionizing radiations" (underscoring added for emphasis). Whereas the detector module appears to satisfy the terms of this heading, we again point out that the detector modules are not complete measuring or detecting devices in and of themselves. They function to receive and convert radiation into electrical signals and are designed to be incorporated into a device. EN 9030 (A), pages 1846 to 1847 of the HS Explanatory Notes, describes devices which receive, record and provide information as to what has been measured or detected. By itself, a detector module is incomplete as a measuring or detecting apparatus. As indicated previously, it constitutes an essential part of a device that measures and detects radiations, e.g., a CT scanner. Based on the information provided by the protestant, these are solely or principally used in apparatus of heading 9022. They are not used in devices of the type described in heading 9030.
Therefore, we conclude that the detector modules are not apparatus of heading 9030, that they are parts of apparatus of heading 9022, and, therefore, pursuant to Note 2(b) to Chapter 90, the detector modules are classifiable as parts of apparatus based on the use of X -rays in heading 9022, and specifically in subheading 9022.90.60, HTSUS.
Detectors and Crystal Arrays
For the reasons stated in the discussion on the classification of the detector modules, we conclude that the detectors and crystal arrays are also classifiable as parts of apparatus based on the use of X rays in subheading 9022.90.60, HTSUS. The detectors are specialized parts of the detector modules, and the crystal arrays are parts of the detectors. Both are ready for assembly in their condition as imported.
Crystals
Based on the facts as stated by the protestant and which are not demonstrated to be otherwise, it appears that the BGO crystal has been fabricated for use as a single scintillator in an oil well logging device. This is a measurement function. The measuring device would appear to be classifiable in heading 9030, HTSUS. No information was submitted with regard to the type of logging device. However, if the BGO crystal has been fabricated for use in an apparatus of heading 9030, classification as a part of that apparatus in subheading 9030.90.88, HTSUS, would be appropriate, provided that a specific provision or language does not require otherwise. See Additional U.S. Rule of Interpretation 1 (c), HTSUS.
Concerning the CWO crystals, we conclude that these are "parts" of crystal arrays. Therefore, classification as parts of crystal arrays in subheading 9022.90.60, HTSUS, would be appropriate. The crystals have been cut to size and shape, and are identifiable as to their specific use in crystal arrays. According to counsel's statements the crystals have been cleaned and polished and have the precise dimensions and pixel size for an array. As noted above, the crystal arrays are classifiable as parts of X ray apparatus in subheading 9022.90.60, HTSUS. As parts of these arrays, the CWO crystals are classifiable in subheading 9022.90.60, provided, of course, that a specific provision or language does not require otherwise.
Classification of the BGO crystal or the CWO crystals as "inorganic products of a kind used as luminophores" in heading 3206, HTSUS, does not appear to be applicable. We note that EN 32.06, on page 599, describes the types of applications for luminophores in preparations for luminescent paints or as coatings for screens in various types of apparatus or in fluorescent lighting tubes. Although the BGO crystal does fluoresce, its design and function is to measure and detect radiations. The CWO crystals are specifically used in devices which detect and convert radiation into visible light.
Therefore, taking into account Note 2(b) to Chapter 90, the BGO crystals are classifiable in subheading 9030.90.88, HTSUS, as parts of apparatus of heading 9022, and the CWO crystals are classifiable in subheading 9022.90.60, HTSUS, as parts of apparatus of heading 9022.
2. Application of HQ 955892 to Detector Modules
In 1994 Customs issued a decision on the protest of the classification of detector modules. In that decision, HQ 955892, Customs determined that similar detector modules were classifiable as apparatus in subheading 9022.90.20 (currently 9022.90.25), HTSUS.
Counsel argues that the protest decision, HQ 955892, is a decision within the meaning of 19 U.S.C. 1625(c). Therefore, Customs is required to provide notice and opportunity for comment, as required in section 1625(c), prior to revoking or modifying the decision. As such, counsel argues that Customs must grant the protest with regard to the classification of the detector modules.
We note that the protestant did not, at the time of entry, claim classification as set out in that ruling. The entry documents indicate that the protestant claimed, at entry, that these detector modules were classifiable in subheading 9022.90.60 as parts of apparatus of heading 9022. We take note of the fact that protestant now points out this ruling. To the extent that the ruling does not reflect the conclusion reached in this decision, Customs will consider the appropriate action to be taken.
Nevertheless, the protest with respect to the classification of the detector modules should be allowed to reflect the fact that classification of detector modules in 9030.10, HTSUS, at liquidation, was not correct.
HOLDING:
The protests were timely filed within 90 days after the date of liquidation of the entries in question.
With respect to the detector modules, classification is in subheading 9022.90.60, HTSUS. To the extent that the detector modules were classified otherwise at liquidation, the protest should be allowed and the entries of these modules should be reliquidated in accordance with this decision.
With respect to the crystal arrays and the detectors, classification is in subheading 9022.90.60 as parts of apparatus of heading 9022. To the extent that the crystal arrays and the detectors were classified otherwise at liquidation, the protest should be allowed and the entries of these modules should be reliquidated in accordance with this decision.
With respect to the CWO crystals, classification is in subheading 9072.90.60 as parts of apparatus of heading 9022. The protest should be allowed on this issue and the entries reliquidated accordingly.
With respect to the BGO crystal, classification is in subheading 9030.90.88 as parts of apparatus of heading 9030, HTSUS. The protest should be denied on this issue.
Finally, to the extent that HQ 955892 may be in disagreement with classification of the detector modules as determined in this decision, Customs will consider appropriate action.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550 065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the Protestant no later than 60 days from the date of this letter.
Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel and to the public on the Customs Home Page on the World Wide Web at www.customs.gov and by means of the Freedom of Information Act and other methods of public distribution.
Sincerely,
Myles B. Harmon
Acting Director
Commercial Rulings Division