CLA-2 CO:R:C:M 950433 MBR
District Director
U.S. Customs Service
555 Battery St., POB 2450
San Francisco, CA 94126
RE: Internal Advice 13/91; General Electric Nuclear Imaging
Systems; Starcam 200; Starcam 3000; Instruments and Appliances
Used in Medical, Surgical, Dental or Veterinary Sciences,
Including Scintigraphic Apparatus
Dear Sir:
This is in reply to your memorandum dated February 7, 1991,
forwarding Internal Advice request 13/91, submitted by counsel on
behalf of the General Electric Company, regarding the
classification of Nuclear Imaging Systems, under the Harmonized
Tariff Schedule of the United States (HTSUS). Customs also
considered submissions made by counsel directly to Headquarters.
FACTS:
The Nuclear Imaging System consists of a gamma camera mounted
on a counterbalanced ring gantry, a data processing console with
keyboard and display, and a patient table. To operate the system,
the patient is injected with a radioactive tracer which is absorbed
by the body tissues at varying levels. The level of emission of
gamma rays from these tissues will vary according to the varying
level of absorption. The gamma (or scintillation) camera is a
radiation detection device which uses these variances in the levels
of emission to create an image that provides medical diagnostic
information.
ISSUE:
What is the classification of General Electric Nuclear Imaging
System, under the Harmonized Tariff Schedule of the United States
(HTSUS)? Is it classifiable in subheading 9018.19.80, HTSUS, which
provides for instruments and appliances used in medical, surgical,
dental or veterinary sciences, including scintigraphic apparatus,
other, or is classification more appropriate under subheading
9022.21.00, HTSUS, which provides for apparatus based on the use
of
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alpha, beta or gamma radiations, whether or not for medical,
surgical, dental, or veterinary uses, as the importer argues?
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:
...classification shall be determined according to the terms
of the headings and any relative section or chapter notes...
The Nuclear Imaging System consists of a gamma camera mounted
on a counterbalanced ring gantry, a data processing console with
keyboard and display, and a patient table.
The importer states: "[t]hese interrelated and interdependent
components in the Nuclear Imaging System make it far more than a
simple scintigraphic apparatus (see heading 9018), even though one
item in the system meets that description, and clearly supports
classification in Heading 9022."
However, the Harmonized Commodity Description and Coding
System Explanatory Notes (ENs) to heading 9018 state:
(B) Special diagnostic instruments and apparatus.
These include:
(7) Diagnostic apparatus incorporating or operating in
conjunction with an automatic data processing
machine for processing and visualizing clinical
data, etc.
(8) Apparatus incorporating a scintillation counter
whose data are converted into analogue signals for
the purpose of making medical diagnoses (e.g., gamma
camera, scintillation scanner).
The importer argues that the instant merchandise does operate
on the principles of "scintillation." However, the importer argues
that it is not a "counter," but is an "imager" used for
"radiography." However, Webster's New World Dictionary, Third
College Edition (1984), defines "radiograph" as follows: "a picture
produced on a sensitized film or plate by X-rays." However, the
instant Nuclear Imaging System has no sensitized film or plate and
does not operate by use of X-rays. Therefore, the instant
merchandise could not be said to be based on radiography.
Furthermore, the ENs to heading 9022, HTSUS, page 1503,
state:
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This heading does not cover instruments and apparatus which
are not designed to incorporate a radioactive source and which
merely measure or detect radiation even when such instruments
are calibrated in arbitrary terms. (Emphasis added).
Clearly, the Nuclear Imaging System does not incorporate a
radioactive source, and is therefore not classifiable in heading
9022, HTSUS.
Counsel concedes that the Nuclear imaging system is prima
facie classifiable in heading 9018, HTSUS, and heading 9022, HTSUS.
He argues that heading 9022, HTSUS, is more specific than heading
9018, HTSUS. We disagree. Heading 9022, HTSUS, provides for:
"[a]pparatus 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." This provision includes everything from
apparatus for measuring the thickness of materials and monitoring
the contents of packages, to fire alarms incorporating smoke
detectors containing a radioactive substance. Clearly, a number
of these articles are not for medical, surgical, dental or
veterinary uses. Whereas, heading 9018, HTSUS, provides for:
"[i]nstruments and appliances used in medical, surgical, dental or
veterinary sciences, including scintigraphic apparatus, other
electro-medical apparatus and sight-testing instruments." These
are all ejusdem generis, applying only to apparatus used in the
various medical disciplines, specifically including scintigraphic
apparatus. Clearly, this is a more specific provision. Therefore,
pursuant to GRI 3(a), the General Electric Nuclear Imaging System
is classifiable in heading 9018, HTSUS.
Counsel demonstrated the existence of several different types
of scintigraphic apparatus, attempting to exclude the instant
merchandise from this class or kind of apparatus. However, it is
Customs position that the instant merchandise is a technological
advancement in this area, and as such, is not excluded from this
provision, particularly since it operates on the same principles
(scintigraphic) and performs the same functions (medical analysis)
as the demonstrated models. See also Simmon Omega, Inc. v. United
States, 83 Cust. Ct. 14, C.D. 4815 (1979), and Trans-Atlantic Co.
v. United States, 471 F. 2d 1397, 60 CCPA 100, C.A.D. 1088 (1973),
in which the courts have held that technological advancements and
"improvement in the design of an article does not militate against
its continuing to be a form of the named articles." Additionally,
the courts have stated that "[i]t must also be remembered that the
tariff statutes were enacted 'not only for the present but also for
the future, thereby embracing articles produced by technologies
which may not have been employed or known to commerce at the time
of the enactment * * *.'" NEC America, Inc. v. United States, 8 CIT
184, 186 (1984), citing Corporacion Sublistatica, S.A. v. United
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States, 1 CIT 120, 126, 511 F.Supp. 805, 809 (1981); See also
Davis Turner & Co. v. United States, 45 CCPA 39, 41, C.A.D. 669
(1957).
The Medical Device Register (1987) which is the "Official
Directory of Hospital Suppliers" (published by Directory Systems,
Inc., of Stamford, Connecticut), defines a "Scintillation (gamma)
camera" as follows:
A scintillation (gamma) camera is a device intended to be used
to image the distribution of radionuclides in the body by
means of a photon radiation detector. This generic type of
device may include signal analysis and display equipment,
patient and equipment supports, radionuclide anatomical
markers, component parts and accessories.
Therefore, it is the opinion of this office that the instant
Nuclear Imaging System is, in fact, a "scintillation (gamma)
camera." Furthermore, we consider a "scintillation (gamma) camera"
to be a technological development of a "scintillation counter."
Counsel for the importer argues that: "[t]he nuclear imaging
system is more than an 'instrument and appliance' and more than a
scintigraphic detector because it also includes a digital computer
which creates a visual image." We disagree. We refer counsel to
chapter 90, Legal Note 3, which states: "[t]he provisions of note
4 to section XVI apply also to this chapter." Legal Note 4 to
section XVI provides that:
Where a machine (including a combination of machines) consists
of individual components (whether separate or interconnected
by piping, by transmission devices, by electric cables or by
other devices) intended to contribute together to a clearly
defined function..., then the whole falls to be classified in
the heading appropriate to that function.
Counsel also argues that under the Tariff Schedules of the
United States (TSUS), the instant merchandise was classifiable
under item 709.66, and that "[t]here are no significant changes in
the language or the substance of Heading 9022, USHTS [sic], from
item 709.66, both of which refer to apparatus employing gamma
radiation." However, in fact there are significant changes between
item 709.66, TSUS, and heading 9022, HTSUS. Item 709.66, TSUS,
provides for "[a]pparatus based on the use of X-rays or of the
radiations from radioactive substances, whether for medical,
industrial, or other uses,...." Whereas, heading 9022, HTSUS,
provides only for "[a]pparatus based on the use of X-rays or alpha,
beta or gamma radiations...." Thus, heading 9022, HTSUS, does not
provide for apparatus based solely on the use of radiations from
radioactive substances, as item 709.66, TSUS, provided for.
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Counsel additionally offers the U.S. International Trade
Commission's table of comparative tariff provisions as proof of
their argument. However, due to the change in tariff language, and
the ENs clear exclusion of the instant merchandise from heading
9022, HTSUS, we do not find the USITC's general "Cross-Reference"
binding on the instant classification.
Counsel inquires whether the provisions of subheading
9810.00.80, HTSUS, would apply to the instant merchandise, should
it be found classifiable in heading 9018, HTSUS. Subheading
9810.00.80, HTSUS, provides for: "[a]rticles imported for the use
of any nonprofit institution, whether public or private,
established for educational, scientific or therapeutic purposes:
[a]pparatus utilizing any radioactive substance in medical
diagnosis or therapeutic treatment, including the radioactive
material itself when contained in the apparatus as an integral
element thereof, and parts or accessories of any of the foregoing."
It is Customs position that, while the instant merchandise
does not "incorporate" any radioactive substances, it does
"utilize" a radioactive substance since it produces an image by
detecting radiation introduced into a patient, and would therefore
fall within the purview of subheading 9810.00.80, HTSUS.
HOLDING:
The General Electric Nuclear Imaging System is classifiable
in subheading 9018.19.80, HTSUS, which provides for: "[i]nstruments
and appliances used in medical, surgical, dental or veterinary
sciences, including scintigraphic apparatus, other electro-medical
apparatus and sight-testing instruments: [e]lectro-diagnostic
apparatus (including apparatus for functional exploratory
examination or for checking physiological parameters): [o]ther:
[o]ther." Subheading 9810.00.80, HTSUS, may apply, contingent upon
use.
The Internal Advice applicant should be advised of this
decision.
Sincerely,
John Durant, Director
Commercial Rulings Division