CLA-2 RR:CR:GC 966459 AML
Mr. Jonathan Beck
Tower Group International
810 Cromwell Park Drive, Suite E
Glen Burnie, MD 21061-2562
RE: NY H86817 revoked; Binding ruling concerning selenium coated
panels for Thin Film Transistor (“TFT”) instruments
Dear Mr. Beck:
This is in reference to New York Ruling Letter (“NY”) H86817, dated January 30, 2002, issued to you on behalf of Direct Radiography Corporation, concerning classification of certain selenium coated, X-ray detector arrays or panels for Thin Film Transistor (“TFT”) instruments, under the Harmonized Tariff Schedule of the United States (“HTSUS”). We have reconsidered the classification made in NY H86817 and determined that it is incorrect. This ruling sets forth the correct classification.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625 (c)), 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), notice of the proposed revocation of NY H86817 was published on June 18, 2003, in Vol. 37, No. 25 of the Customs Bulletin. No comments were received in response to this notice.
FACTS:
We described the articles in NY H86817 as follows:
In its imported state, no sample provided, “the panel would consist of TFT (Thin Film Transistor) panels laminated to a sheet of glass for added strength. These panels would have amorphous selenium coated onto the panel.”
From the information provided, the imported detector array is 14 by 17 inches in size and is the “heart” of the digital detector. This import will lack the electronics of the controller/computer which will be needed to produce images from its electrical output. The final images will be similar to, but more precise than, the images produced on a traditional, direct view, X-ray screen. The imported array will produce electricity proportional to the intensity of X-rays striking each small area of the device.
In NY H86817, we classified the TFT panels under subheading 9030.10.00, HTSUS, which provides for instruments and apparatus for measuring or detecting alpha, beta, gamma, X-ray, cosmic or other ionizing radiations.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625 (c)), 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), notice of the proposed revocation of NY H86817 was published on June 18, 2003, in Vol. 37, No. 25 of the Customs Bulletin. No comments were received in response to this notice.
ISSUE:
What is the essential character and classification of the coated, laminated TFT panels under the HTSUS?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRIs”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.
The HTSUS provisions under consideration are as follows:
7007 Safety glass, consisting of toughened (tempered) or
laminated glass:
Laminated safety glass:
7007.29.00 Other.
* * *
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:
Apparatus based on the use of X-rays, whether or
not for medical, surgical, dental or veterinary uses,
including radiography or radiotherapy apparatus:
9022.90 Other, including parts and accessories:
Other:
9022.90.60 Of apparatus based on the use of X-rays.
* * *
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:
9030.90 Parts and accessories:
Other:
9030.90.88 Other.
When interpreting and implementing the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, while neither legally binding nor dispositive, provide a guiding commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. Customs believes the ENs should always be consulted. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
In classifying the articles, Note 1 to Chapter 90 provides, in pertinent part, that:
1. This chapter does not cover:
* * *
(e) Goods of heading 7007, 7008, 7011, 7014, 7015 or 7017[.]
Similarly, Chapter Note 1(d) to Chapter 70, HTSUS, states that that chapter does not cover "... optically worked optical elements ... of [C]hapter 90[.]" Therefore, if the articles are classified in Chapter 70, they cannot fall to be classified in Chapter 90.
Heading 7007, HTSUS, provides, in pertinent part, for safety glass consisting of laminated glass.
EN 70.07, provides, in pertinent part, that:
The term “safety glass” covers only the types of glass described below and does not refer to protective glass such as ordinary wired glass and selective absorption glasses (e.g., anti-glare glass, X-ray protective glass).
* * *
Safety glass incorporated in other articles and thus in the form of parts of machines, appliances or vehicles is classified with those machines, appliances or vehicles (emphasis added).
We find that the laminated panels of glass, in and of themselves, would not be referred to commercially as “safety glass.” The unrefuted evidence is that the Korean TFT panels are laminated with a glass backing only to provide stability in transit. There is no indication that the lamination enhances in any manner the function of the TFTs when they are complete. The addition of the selenium coating (in preparation for use as parts of X-ray apparatus) prior to entry supports this conclusion.
Hence, the articles are not classifiable as articles of glass within Chapter 70 and therefore Note 1 to Chapter 90 does not exclude the articles from classification within Chapter 90.
Once the panels are coated with selenium in Canada, they have been further worked, and, for tariff purposes, can no longer be considered mere panels of laminated glass. However, as imported, they are incomplete or unfinished articles which must be further processed into detector modules which are X-ray receptor devices whose function is to detect radiations, convert them to light then to electrical signals. A CT scanner then processes these signals to create images that are displayed on a monitor. Information available to us with respect to substantially similar glass panels indicates that the further processing whereby the selenium coated glass panels are completed into X-ray receptor devices or digital detectors includes the depositing of additional, unspecified proprietary coatings on top of the selenium, attachment of various electronic components around the periphery of the glass panels, followed by mounting each assembled panel into a mechanical frame along with printed circuit assemblies and other electronic assemblies and cables.
GRI 2(a) provides, in pertinent part that “any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article.” The evidence presented indicates that it is the selenium coating that renders the TFT panels capable of performing their intended function of capturing X-ray radiations in the form of an electrical charge. Without this coating the panels are incapable of being used as digital detectors. From this, we conclude that the selenium coating imparts the essential character to the TFT panels, such that, for tariff purposes, they are to be classified as complete or finished digital detectors or X-ray receptor devices.
In Protest Review Decision 965641, dated September 30, 2002, we classified, among other things, component articles involved in the detection of x-rays under heading 9022, HTSUS. In so doing we stated:
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 (sic) 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 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. HQ 965641 at pp. 5-6.
As indicated in HQ 965641, Note 2 to Chapter 90, HTSUS, provides, in pertinent part, as follows:
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.
In compliance with Note 2 to Chapter 90 and the language of heading 9022, HTSUS, and because the evidence presented establishes that the subject panels are suitable for use solely or principally with goods of heading 9022, HTSUS, they are classified in heading 9022, HTSUS.
HOLDING:
The subject selenium coated TFT glass panels are classified under subheading 9022.90.60, HTSUS, which provides for other parts and accessories of apparatus based on the use of X-rays.
EFFECT ON OTHER RULINGS:
NY H86817 is revoked. In accordance with 19 U.S.C. §1625 (c), this ruling will become effective sixty (60) days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division