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HQ 088755


June 2, 1992

CLA-2 CO:R:C:M 088755 MBR

CATEGORY: CLASSIFICATION

TARIFF NO.: 9022.11.00

District Director
U.S. Customs Service
909 First Ave., Rm 2039
Seattle, WA 98174

RE: Protest Number 3001-90-101381; Toshiba Super Metal X-Ray Image Intensifier Tubes; X-Ray Apparatus; Medical, Surgical, Dental or Veterinary Uses

Dear Sir:

This is in response to the Application for Further Review of Protest Number 3001-90-101381, dated November 26, 1990, on behalf of Toshiba Electronic Components, Inc., regarding classification of the "Super Metal X-ray Image Intensifier Tubes," under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The protestant states that the "Toshiba Super Metal X-Ray Image Intensifier Tube" is a device exclusively designed to convert X-ray photons emitted by an X-ray tube into normal light photons and, in turn, convert these photons into visible light for the purpose of rendering an X-ray image visible for medical diagnostic utilization. Specifically, it is used to increase the range and quality of the X-ray images upon which today's medical practitioners rely as medical diagnostic tools while reducing the amount of harmful X-rays required to achieve a diagnostically useful image.

The X-ray image intensifier is that part of the X-ray apparatus which first receives the X-rays after they have irradiated the particular body segment being examined. The X-ray image intensifier then converts X-ray photons into normal light photons by means of an X-ray incident window through which the X- ray enters a Cesium Iodide ("CsI") input phosphor screen. This conversion is essential to the function of the device: to provide the optimal diagnostic images while ensuring the safety of the patient and the X-ray technicians.

The Toshiba X-ray image intensifier is specially engineered with a thick input phosphor screen whose columnar CsI crystals capture and convert to normal light photons a greater percentage of available X-ray photons than X-ray equipment which does not include the specifically designed X-ray image intensifier apparatus. CsI crystals are specifically used, as they exhibit a "vertical taming" effect which enhances the X-ray image, as photons striking a horizontal crystal mass exhibit less penetration and more random photon loss.

The design of the Image Intensifier is constant, and the model numbers change to reflect the diameter of the input phosphor screen and aluminum window for a given diagnostic purpose: thicker tissue, for example, requires a wider screen and window.

Typically, an X-ray Image Intensifier is connected to a still camera or television camera (depending on the diagnostic need) which produces the final picture.

ISSUE:

What is the classification of the "Toshiba Super Metal X-ray Image Intensifier Tube," under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA)?

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) to the HTSUSA 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 Image Intensifier Tubes were entered under subheading 8540.20.20, HTSUSA, which provides for: "[t]hermonic, cold cathode or photocathode tubes...: [t]elevision camera tubes; image converters and intensifiers: [c]athode-ray tubes." The protestant claims that the merchandise is properly classifiable under subheading 9022.11.00, HTSUSA, 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."

The protestant argues that "the Toshiba 'Super Metal X-ray Image Intensifier' [is] exclusively designed to convert X-rays generated by an X-ray tube into visible light primarily for medical diagnostic applications" and as such, is "apparatus based on the use of X-rays."

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
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, clearly the instant, complex, high technology, "Toshiba Super Metal X-ray Image Intensifier Tubes" also fall within the broad scope of the term "apparatus."

Section XVI, chapter 85, subheading 8540.20.20, HTSUSA, provides for: "[t]hermonic, cold cathode or photocathode tubes...: [t]elevision camera tubes; image converters and intensifiers: [c]athode-ray tubes." It is not clear if this provision was even
intended to include apparatus based on the used of X-rays. However, the Legal Notes to Section XVI state:

1. This section does not cover:

(m) Articles of chapter 90

Therefore, since the instant merchandise is classifiable in chapter 90 as "apparatus based on the use of X-rays," it is not classifiable in chapter 85.

The question has been raised whether chapter 90, Legal Note 2(a), has any bearing on the instant classification. However, Legal Note 2(a) governs the classification of "parts and accessories for machines, apparatus, instruments or aticles of 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, Toshiba Super Metal X-ray Image Intensifier is classifiable as "apparatus based on the use of X-rays...for medical, surgical, dental or veterinary uses..." provided for in heading 9022, HTSUSA.

HOLDING:

The Toshiba Super Metal X-ray Image Intensifier is properly classifiable under subheading 9022.11.00, HTSUSA, 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; parts and accessories thereof: [a]pparatus based on the use of X-rays...: [f]or medical, surgical, dental or veterinary uses."

The protest should be granted in full. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

Sincerely,


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