CLA-2 RR:CR:GC 960262 HMC
Port Director of Customs
Chief, Residual Liquidation and
Protest Branch
6 World Trade Center
Room 761
New York, NY 10048-0945
RE: Protest 1001-96-106433; LR 3300 Laser Imaging System, MG
3000 Gateway; Subheadings 9010.50.60, 9010.20.60, and 9033.00.00;
Section XVI, Note 4; Chapter 90, Notes 2 and 3; General
Explanatory Note to Chapter 90; Explanatory Note 90.10; Other
Electro-Medical Instruments and Appliances; Other Apparatus and
Equipment for Photographic Laboratories; Parts and Accessories
for machines of Chapter 90.
Dear Port Director:
This is our decision on Protest 1001-96-106433, filed
against your classification of the LR 3300 Laser Imaging Systems
and the MG 3000 Gateway. The entry under protest was liquidated
on May 31, 1996, and this protest timely filed on August 23,
1996. Please note that HQ 960292, involving the same
merchandise, was also issued on this date.
FACTS:
The merchandise under protest is the LR 3300 and LR 3300P
Laser Imaging Systems ("laser imagers") and an auxiliary unit,
called MG 3000 Gateway. The laser imagers contain two main
components: a controller and an imager. The controller is
described as a dedicated, central processing unit (CPU) that
receives video and/or digital signals sent by diagnostic
equipment, such as computed tomography (CT) scanners, magnetic
resonance machines (MRI), and sonograms, from any location in a
hospital. The controller configures the signals into electronic
images in paginated format and then transmits the images to the
imager. Once received, the imager records the configured images
onto a special film by means of a HeNe laser, which scans the
film in a raster fashion. In the case of the LR 3300 laser
imager, a separate film processing unit reproduces the film. In
the case of the LR 3300P model, the film processing unit is
integrated into the laser imager. Each controller is able to
serve three separate diagnostic units, so that, for example, two
MRIs and one ultrasound machine may simultaneously work with the
merchandise.
The MG 3000 Gateway ("Gateway") allows the laser imagers to
connect three additional diagnostic units into an overall network
of equipment. The Gateway extends the network capabilities.
However, it cannot be used as a controller because it can not
process data for film. It can only receive data from diagnostic
units. Gateway units were imported separately.
The merchandise was entered under a provision for apparatus
and equipment for automatically developing photographic
(including cinematographic) film or paper in rolls or for
automatically exposing developed film to rolls of photographic
paper under subheading 9010.10.00 of the Harmonized Tariff
Schedule of the United States (HTSUS). Protestant now claims
that the merchandise is classifiable as other apparatus and
equipment for photographic (including cinematographic)
laboratories under subheading 9010.50.60, HTSUS (9010.20.60,
HTSUS, prior to 1996). However, the entries were liquidated
under subheading 9033.00.00, HTSUS, as parts and accessories (not
specified or included elsewhere in this chapter) for machines,
appliances, instruments or apparatus of chapter 90.
The 1995 provisions under consideration are as follows:
9010 Apparatus and equipment for photographic
(including cinematographic) laboratories
(including apparatus for the projection
or drawing of circuit patterns on
sensitized semiconductor materials), not
specified or included elsewhere in this
chapter; nagatoscopes; projection
screens; parts and accessories thereof:
9010.10.00 Apparatus and equipment for
automatically developing
photographic (including
cinematographic) film or paper
in rolls or for automatically
exposing developed film to
rolls of photographic
paper...3.4%
9010.20 Other apparatus and equipment for
photographic (including
cinematographic) laboratories;
negatoscopes:
9010.20.60 Other...Free
* * * *
9018 Instruments and appliances used in
medical, surgical, dental or veterinary
sciences, including scintigraphic
apparatus, other electro-medical
apparatus and sight-testing instruments;
parts and accessories thereof:
9018.90 Other instruments and appliances
and parts and accessories thereof:
Other:
Electro-medical
instruments and
appliances and parts and
accessories thereof:
Other:
9018.90.75 Other...3.4%
* * * *
9033.00.00 Parts and accessories (not
specified or included elsewhere in
this chapter) for machines,
appliances, instruments or
apparatus of chapter 90...4.8%
ISSUE:
Whether the laser imagers and Gateway are classifiable as
parts and accessories (not specified or included elsewhere in
chapter 90) for machines, appliances, instruments or apparatus of
chapter 90 under subheading 9033.00.00, HTSUS, as other electro-medical instruments and appliances under subheading 9018.90.75,
HTSUS, or as other apparatus and equipment for photographic
laboratories under subheading 9010.20.60, HTSUS.
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance
with the General Rules of Interpretation (GRIs). GRI 1 states in
part that for legal purposes, classification shall be determined
according to the terms of the headings and any relative section
or chapter notes, and provided the headings or notes do not
require otherwise, according to GRIs 2 through 6.
Chapter 90, Note 2, HTSUS, states, in part, that subject to
Note 1, 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.
Chapter 90, Note 3, HTSUS, states that "[t]he provisions of
Note 4 to section XVI, [HTSUS], apply also to this chapter."
Section XVI, Note 4, HTSUS, states that
[w]here 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 covered by one of the headings in
chapter 84 or chapter 85 [or chapter 90 by
virtue of chapter 90, Note 3], then the whole
falls to be classified in the heading
appropriate to that function.
The Harmonized Commodity Description And Coding System
Explanatory Notes (EN's) constitute the official interpretation
of the Harmonized System. While not legally binding on the
contracting parties, and therefore not dispositive, the EN's
provide a commentary on the scope of each heading of the
Harmonized System and are thus useful in ascertaining the
classification of merchandise under the System. Customs believes
the EN's should always be consulted. See T.D. 89-80, 54 Fed.
Reg. 35127, 35128 (Aug. 23, 1989).
General EN (VII) to Section XVI, HTSUS, at page 1227, states
that
[f]or the purposes of this Note, the expression
"intended to contribute together to a clearly defined
function" covers only machines and combinations of
machines essential to the performance of the function
specific to the functional unit as a whole, and thus
excludes machines or appliances fulfilling auxiliary
functions and which do not contribute to the function
of the whole.
Customs liquidated the merchandise under subheading
9033.00.00, HTSUS, as parts and accessories (not specified or
included elsewhere in this chapter) for machines, appliances,
instruments or apparatus of chapter 90. In his brief, counsel
for Protestant contends that the laser imagers are functional
units, classifiable under subheading 9010.20.60, HTSUS, (the
precursor to 9010.50.60, HTSUS) as other apparatus and equipment
for photographic (including cinematographic) laboratories.
Counsel states that the sole function of the system is to
formulate and expose images on medical film for visual
examination from signals generated by diagnostic equipment. We
believe that, in this instance, Protestant is correct in
considering the merchandise a functional unit and not parts and
accessories. The controller and the imager that make up the
laser imagers together contribute to the clearly defined function
of creating radiology films. However, we disagree with
Protestant's contention that the laser imagers are described by
heading 9010, HTSUS. We find instead that the function performed
by the merchandise is described by heading 9018, HTSUS.
Heading 9018 includes other electro-medical apparatus.
General EN (I) to Chapter 90, at page 1576, states that Chapter
90 covers a wide variety of instruments and apparatus which are,
as a rule, characterized by their high finish and high precision.
Most of them are used mainly for scientific purposes (laboratory
research work, analysis, astronomy, etc.), for specialized
technical or industrial purposes (measuring or checking,
observation, etc.) or for medical purposes. EN 90.18 states
that heading 9018 covers a very wide range of instruments and
appliances which, in the vast majority of cases, are used only in
professional practice (e.g. by doctors, surgeons, dentists,
veterinary surgeons, midwives), either to make a diagnosis, to
prevent or treat an illness or to operate, etc. The literature
provided and the design characteristics of the laser imagers
suggest that they are principally used in a hospital or
professional practice. See Additional U.S. Rule of
Interpretation 1(a). The laser imagers, in this instance, are
designed to receive signals from various diagnostic units such as
ultrasound and MRI machines to produce radiographic films. We
therefore conclude that the LR 3300 and LR 3300P are electro-medical apparatus described by heading 9018, HTSUS.
Counsel for Protestant argues that the merchandise is
described by heading 9010, HTSUS, because the laser imagers work
using photographic principles. We note that heading 9010
includes apparatus and equipment for photographic laboratories,
not specified or included elsewhere in this chapter. (emphasis
supplied) Since the merchandise is described by heading 9018,
the laser imagers are precluded from classification under
subheading 9010.50.60, HTSUS. Similarly, the merchandise is not
classifiable under subheading 9033.00.00, HTSUS, given the
exclusionary words provided in heading 9033, HTSUS.
Nevertheless, we believe that the merchandise is not
described by heading 9010 because it is not a kind of machine
used in photographic or cinematographic laboratories. The Laser
imagers are not ejusdem generis to the devices described by EN
90.10. The Courts describe the rule of ejusdem generis, as
applied to tariff classification cases, as follows:
Under the rule of ejusdem generis, which means "of
the same kind," where an enumeration of specific things
is followed by a general word or phrase, the general
word or phrase is held to refer to things of the same
kind as those specified. ... As applicable to
classification cases, ejusdem generis requires that the
imported merchandise possess the essential
characteristics or purposes that unite the articles
enumerated eo nomine in order to be classified under
the general terms. See Sports Graphics, Inc. v. United
States, 24 F.3d 1390, 1392 (Fed. Cir. 1994)(citing
Nissho-Iwai Am. Corp. v. United States, 10 CIT 154,
157, 641 F. Supp. 808 (1986)).
EN 90.10, at page 1594, states that heading 9010 includes
special film developing tanks, special trays, tanks for washing
negatives, print driers, printing frames, film cutting machines,
special holding frames, etc. Each of these exemplars is an
article of the kind used in photographic laboratories. This is
the essential characteristic which unites the exemplars listed in
EN 90.10. The laser imagers are not like the articles enumerated
by EN 90.10. They are not equipment for photographic
laboratories. Even if the laser imaging process is considered
photographic, in this instance, the laser imagers will be
principally used in a hospital or medical office and not in a
"photographic laboratory." The fact that one of the models
contains a processor does not affect this conclusion.
Counsel cites various rulings that involve the
classification of step and repeat machines to support the
contention that the merchandise is equipment for photographic
laboratories. These machines are described as using a
microprocessor to horizontally and vertically move or "step"
single or multiple negatives produced by a photographic camera to
different areas on the same plate and then repeat the exposure.
Customs determined that these machines are described by heading
9010, HTSUS. See HQ 958054, dated September 26, 1995, and HQ
952345, dated November 9, 1993.
Heading 9010 provides for apparatus for the projection or
drawing of circuit patterns on sensitized semiconductor
materials. We note that EN 90.10, at page 1595, states that
heading 9010 includes step and repeat aligners. The step and
repeat aligner is one exemplar of an apparatus for the projection
or drawing of circuit patterns on sensitized semiconductor
materials. Thus, the rulings cited by counsel involve a specific
class of step and repeat machines that also fall under heading
9010. The subject laser imagers are not like step and repeat
machines or apparatus for the projection or drawing of circuit
patterns on sensitized semiconductor materials. The merchandise,
in this instance, simply converts images into digital signals
that are then recorded on film by laser technology. The laser
imagers are therefore not described by heading 9010, HTSUS. They
are electro-medical apparatus which will be principally used in a
hospital or professional setting to produce images on film for
diagnostic purposes. The laser imagers are classifiable under
subheading 9018.90.75, HTSUS. We also find that the Gateways are
classifiable under subheading 9018.90.75, HTSUS, because they are
accessories to the laser imagers. The Gateway is not necessary
for the laser imagers to work but it contributes to the
effectiveness of the laser imagers by enhancing their capability.
As the Gateways are accessories principally used with laser
imagers, based on Note 2(b) to Chapter 90, they are classifiable
with the laser imagers.
HOLDING:
Under the authority of GRI 1, the LR 3300, the LR 3300P and
the MG 3000 Gateway are classifiable under subheading 9018.90.75,
HTSUS, as "Electro-medical instruments and appliances and parts
and accessories thereof: Other: Other." The 1995 rate of duty is
3.4%.
This protest should be DENIED. In accordance with Section
3A(11)(b) of Customs Directive 099 3550-065, dated August 4,
1993, Subject: Revised Protest Directive, you should mail this
decision, together with the Customs Form 19, to the Protestant no
later than 60 days from the date of this letter. Any
reliquidation of the entry or entries in accordance with the
decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of
Regulations and Rulings will take steps to make the decision
available to Customs personnel via the Customs Rulings Module in
ACS and to the public via the Diskette Subscription Service, the
Freedom of Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division