CLA-2 CO:R:C:M 955892 MBR
District Director
U.S. Customs Service
55 Erieview Plaza
Cleveland, Ohio 44114
RE: Protest Number 4101-94-100005; PGS Detector Module Assembly;
X-Ray Apparatus; Medical, Surgical, Dental or Veterinary Uses;
HQ 952358
Dear District Director:
This is our response to Protest 4101-94-100005, filed on
behalf of Advanced Crystal Technology, regarding the classification
of the "PGS Detector Module Assembly," under the Harmonized Tariff
Schedule of the United States (HTSUS). The subject entries were
liquidated on October 15, 1993. The protest was timely filed on
January 13, 1994.
FACTS:
The PGS Detector Module Assembly is a radiological image
receptor for a computed Tomography ("CT") scanner. The CT scanner
is used for X-ray medical diagnosis. Every diagnostic x-ray
machine is composed of the following subsystems: "X-ray production,
spatial and spectral shaping of the x-ray beam, patient handling,
as well as a means for image detection and capture, intermediate
image handling, image processing, display, and storage."
Encyclopedia of Medical Devices and Instrumentation, Webster
(1988).
After importation, the PGS Detector Module Assemblies are
assembled to create the detector ring for Picker's PQ-2000 CT
scanner. The detector ring contains 120 PGS Detector module
Assemblies. Each PGS Detector Module Assembly contains 40
detectors. Each module contains a 40 channel crystal/ photodiode
array which consists of 40 cadmium tungstate crystals bonded to
silicon photodiodes. The array also includes a forty-first
detector, which serves as the reference channel. This detector
corrects the imaging signals from the other forty detectors by
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removing scattered radiation and other distortions. The
crystal/photodiode array is attached to a daughter board. The
board also contains two 20 channel pre-amplifiers, electrical and
light shielding, and the power and switching circuitry for the
crystal/photodiode arrays.
The detector modules are completely assembled and tested prior
to importation. As imported, they are ready to plug into a
motherboard in the gantry. Each shipment includes all 120 detector
modules which form the complete detector annular ring.
ISSUE:
What is the classification of the "PGS Detector Module
Assembly," under the Harmonized Tariff Schedule of the United
States (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:
...classification shall be determined according to the terms
of the headings and any relative section or chapter notes...
The instant entries were liquidated under subheading
9030.10.00, HTSUS, which provides for: "[i]nstruments and apparatus
for measuring or detecting alpha, beta, gamma, X-ray, cosmic or
other ionizing radiations: [i]nstruments and apparatus for
measuring or detecting ionizing radiations." The protestant claims
that the merchandise is properly classifiable under subheading
9022.11.00, HTSUS, 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."
In the alternative, the protestant claims that the merchandise
is classifiable under subheading 9022.90.20, HTSUS, 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: [o]ther,
including parts and accessories: [o]ther apparatus."
There is no disagreement that the instant merchandise is used
for X-ray medical diagnosis. However, the issue has been raised
whether the instant merchandise is classifiable as "apparatus."
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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, the instant, complex, high
technology, "PGS Detector Module Assemblies" also fall within the
broad scope of the term "apparatus."
The question has also been raised whether chapter 90, Legal
Note 2(a), has a bearing on the instant classification. However,
Legal Note 2(a) governs the classification of "parts and
accessories for machines, apparatus, instruments or articles of
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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, the PGS Detector Module Assemblies are classifiable
as "apparatus based on the use of X-rays...for medical, surgical,
dental or veterinary uses..." provided for in heading 9022, HTSUS.
The instant merchandise is also prima facie classifiable under
subheading 9030.10.00, HTSUS, which provides for instruments and
apparatus for measuring or detecting X-rays. However, A Manual of
Customs Law, Ruth F. Sturm (1974), page 246 states that:
Merchandise is classifiable under the tariff provision
having requirements which are more difficult to satisfy.
Arthur J. Humphreys et al. v. United States, 56 CCPA 67,
C.A.D. 956, 407 F.2d 417 (1969); F.L. Smith & Company v.
United States, 56 CCPA 77, C.A.D. 958, 409 F.2d 1369 (1969).
Thus, in the case first cited it was held that cabinets for
radio-phonograph combinations were classifiable as parts of
such combinations, rather than as parts of furniture because
the requirements for classification as the former were more
difficult to satisfy.
It is Customs position that the provision for "[a]pparatus
based on the use of X-rays..., whether or not for medical,
surgical, dental or veterinary uses...," is more difficult to
satisfy than "...apparatus for measuring or detecting...X-ray,"
since X-ray medical use is a more restrictive provision.
In HQ 952358, dated October 13, 1992, Customs considered the
classification of similar merchandise. In that ruling we cited the
Harmonized Commodity Description and Coding System Explanatory
Notes ("ENs"), page 1500, which states that the fundamental element
of apparatus based on the use of X-rays "is the unit containing the
X-ray generating tube or tubes. This unit, which is usually
suspended or mounted on a pedestal or other support with a
directing or elevating mechanism, is fed with appropriate voltages
from special equipment consisting of an assembly of transformers,
rectifiers, etc." Therefore, we found that similar apparatus,
which did not incorporate X-ray generating tubes, was properly
classifiable in subheading 9022.90.20, HTSUS. We find the same
rationale applicable here.
HOLDING:
The "PGS Detector Module Assemblies" are properly classifiable
under subheading 9022.90.20, HTSUS, 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,
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X-ray tubes and other X-ray generators,...desks, screens,
examination or treatment tables, chairs and the like; parts and
accessories thereof: [o]ther, including parts and accessories:
[o]ther apparatus."
The protest should be granted in full. In accordance with
Section 3A(11)(b) of Customs Directive 099 3550-065, dated August
4, 1993, Subject: Revised Protest Directive, this decision,
together with the Customs Form 19, should be mailed by your office
to the protestant no later than 60 days from the date of this
letter. Any reliquidation of the entry in accordance with this
decision must be accomplished prior to the mailing of this
decision. Sixty days from the date of this decision the Office of
Regulations and Rulings will take steps to make this decision
available to Customs personnel via the Customs Rulings Module in
ACS and the public via the Diskette Subscription Service, Lexis,
Freedom of Information Act and other public access channels.
Sincerely,
John Durant, Director