CLA-2 OT:RR:CTF:TCM H028167ARM
Port Director
U.S. Customs and Border Protection
9915 Bryn Mawr Rosemont, IL 60018
Re: Protest and Application for Further Review No: 3901-08-100498; Red 4034 Perspex Dosimeters
Dear Port Director:
The following is our decision regarding Protest and Application for Further Review no. 3901-08-100498, timely filed on March 26, 2008, regarding the classification of Red 4034 Perspex Dosimeters under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The protest describes five entries of Red 4034 Perspex Dosimeters from December 10, 2006, through September 28, 2007, under subheading 9030.10.00, HTSUS, which provides for instruments and apparatus for measuring or detecting ionizing radiations. CBP liquidated the entries on February 8, and February 15, 2008, in subheading 3701.90.60, HTSUS, as other unexposed photographic plates and film in the flat.
The Red 4034 Perspex Dosimeters are rectangular pieces of Polymethylmethacrylate (PMMA) to which a dye has been added, measuring
30 mm x 11 mm with a thickness of 3 mm, hermetically sealed in aluminum pouches. The dye absorbs and darkens when radiated. The PMMA pouches are used in gamma radiation facilities where they are each taped into a product box. The boxes are irradiated in order to sterilize the contents of the box by killing bacteria. The contents of the box range from medical devices to commercial products, depending on the individual customer and product processed. After the pouch has been irradiated, it is removed from the box by material handlers. The individual pouches are then opened, and the red PMMA is measured for radiation in a spectrophotometer by a technician.
ISSUE:
Are Red 4034 Perspex Dosimeters classified as “instruments or apparatus” of Chapter 90, photographic plates of Chapter 37 or plastic articles of Chapter 39, HTSUS?
LAW AND ANALYSIS:
The matter protested is protestable under 19 U.S.C. §1514(a) (2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the first entry for entries made on or after December 18, 2004 (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)).
Further Review of Protest No. 3901-08-100498 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 because the decision against which the protest was filed involves questions of law and fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts. Specifically, the legal question at issue is whether Red 4034 Perspex Dosimeters are classified as “instruments or apparatus” of Chapter 90, HTSUS.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context, which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order. GRI 3(a) requires that -- where merchandise is prima facie, classifiable under two or more headings -- "[t]he heading which provides the most specific description shall be preferred to headings providing a more general description." GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to the GRIs.
The HTSUS headings under consideration are the following:
3701 Photographic plates and film in the flat, sensitized, unexposed, of any material other than paper, paperboard or textiles; instant print film in the flat, sensitized, unexposed, whether or not in packs:
3701.99 Other:
3701.99.60 Other . . . . . . . . . .
* * * * * * * * * * * *
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:
9030.10.00 Instruments and apparatus for measuring or detecting ionizing radiations . . . . . . .
Chapter 37, Note 2 states the following: “In this chapter the word "photographic" relates to the process by which visible images are formed, directly or indirectly, by the action of light or other forms of radiation on photosensitive surfaces.”
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
EN 90.30 states, in pertinent part, the following:
(A) INSTRUMENTS AND APPARATUS FOR MEASURING OR DETECTING ALPHA, BETA, GAMMA, X RAY, COSMIC OR OTHER IONISING RADIATIONS
* * *
This group also includes:
(1) Dosimeters and similar apparatus used in radiology for measuring and checking the intensity and penetrating power of X rays.
Protestant claims that the instant Red 4034 Perspex® Dosimeters are classifiable in heading 9030, HTSUS, as instruments for measuring or detecting ionizing radiation. Tariff terms are to be construed in accordance with their common and commercial meanings, which are presumed to be the same Meyer & Lange v. United States, 6 Ct. Cust. Appls. 181, T.D. 35436 (1915); Lonza, Inc. v. United States, 46 F.3d 1098, 1106 (Fed. Cir. 1995).
The word “detect” means “1: to discover the true character of 2: to discover or determine the existence, presence, or fact of.” http://www.merriam-webster.com/dictionary/detect. The court has noted the Merriam-Webster Online Dictionary (2009) definition of apparatus: "equipment designed for a particular use." Photonetics, Inc. v. United States, 659 F. Supp. 2d 1317 (Ct. Int'l Trade 2009).
In New York Ruling Letter (NY) 884231, April 19, 1993, we classified a charcoal based dosimeter using GRI 3(b) in heading 3802, HTSUS, the provision for charcoal. The dosimeter absorbed gases, but had no visible change in the charcoal. Therefore, the ruling is distinguishable from our case in that it did not detect the presence of the gas separate from the measurement applied after the exposure.
However, gas dosimeter tubes were classified as an apparatus for physical or chemical analysis in heading 9027, HTSUS, in Headquarter’s Ruling Letter (HQ) 950405, dated August 20, 1992. The tubes contained a reagent that emitted a colored dye indicating the exposure to the gas. There, the tubes had calibration markings on them such that measurement could be made at the time that the reagent in the tube is exposed. The ability to simultaneously measure and detect radiation is not required by the terms of the heading.
Like the charcoal dosimeter, the instant red PMMA does not measure radiation. In order to obtain a measurement of the amount of radiation absorbed, a technician must apply a specific instrument, called a spectrophotometer, to the red PMMA to obtain the measurement. However, like the gas dosimeters, the red PMMA darkens in color as it absorbs gamma radiation becoming darker with the amount of the radiation absorbed. In this way, the instant red PMMA detects the existence of gamma radiation for measurement by spectrophotometer, and it is an apparatus, consisting of a red PMMA in a foil pouch, for that detection. The detection is visible and can be verified by spectrometer. In this regard, the item meets the terms of heading 9030, HTSUS.
As for heading 3701, HTSUS, the term “photographic” was defined in QMS, Inc. v. United States, 19 C.I.T. 551 (Ct. Int'l Trade 1995) (See also, HQ 963093, dated September 22, 1999, and HQ 960328, dated February 4, 1998). That case involved the classification of Ink Sheet Rolls (ISRs) used in color thermal transfer printers which are used to print graphics with automatic data processing equipment. In that case, the court stated:
From the statutory definition of "photographic," and the scientific definitions of the term radiation used in the statutory definition, this Court finds the term "photographic" to be sufficiently broad so as to indicate a legislative intent to include within the tariff provisions of Chapter 37 more processes than what may be considered conventional photography or photography as that term may be commonly understood. . . . It is sufficient that the process permits the formation of visible images directly or indirectly by the action of light or other forms of radiation on sensitive surfaces. . . .
Id. at 562-563.
An image is defined as “A reproduction of the form of a person or object, especially a sculptured likeness. The American Heritage® Dictionary of the English Language, Fourth Edition copyright ©2000 by Houghton Mifflin Company, updated in 2009, published by Houghton Mifflin Company.
The instant merchandise is subject to a photographic process which exposes a photographic plate such that the color of it darkens. No image appears or is etched into the plate other than the darkening in color. While the court has recognized a broad number of photographic processes that could include the exposure of a plastic dyed plate, there is no indication that the image requirement would include any exposure. Here, there is no representation or likeness on the red plastic after exposure. Therefore, the instant merchandise cannot be classified in heading 3701, HTSUS.
HOLDING:
The instant merchandise, Red 4034 Perspex Dosimeters, is classified in heading 9030, HTSUS, as an apparatus for detecting gamma radiation. Specifically, 9030.10.00, HTSUS, as “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: Instruments and apparatus for measuring or detecting ionizing radiations,.” The 2006 and 2007 general, column 1 duty rate is 1.6%.
As the classification corresponds to a duty rate that is less than the liquidated rate, the protest is ALLOWED.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP 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 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, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division