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HQ 952162

July 22, 1992

CLA-2 CO:R:C:M 952162 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9022.19.00

Ms. Emylene J. de Jesus
Vice-President
James J. Boyle & Co.
Air & Ocean Airport Services
371 Allerton Avenue
So. San Francisco, CA 94080

RE: Incomplete X-ray Diffraction System; EN 90.22(I); GRI 2(a); Essential Character

Dear Ms. de Jesus:

This is in response to your letters to the Area Director of Customs, New York Seaport, of May 28, 1992, and March 12, 1992, concerning the classification of an incomplete X-ray diffraction system under the Harmonized Tariff Schedule of the United States (HTSUS). Your request has been referred to Headquarters for a reply.

FACTS:

The merchandise consists of an incomplete X-ray diffraction system. A complete X-ray diffraction system is comprised of a goniometer, an optical system, an image plate, an image plate reader, a controller, an X-ray generator, and a SUN SPARC 2 computer. It is our understanding that all of the above items, except for the computer, will be imported together. After importation into the U.S., the computer will be added to the system.

The X-ray diffraction system is an area detector used to analyze proteins and other macromolecules. The system allows for high speed processing of large amounts of data. In the system's operation, fine crystals of photo-stimulated luminescence are uniformly coated on the image plate. When an X-ray strikes this layer, it generates a semi-stable color point. Exposure to visible light from a laser beam causes this point to emit photo- stimulated luminescence, the strength of which is proportional to the intensity of the x-ray. At the same time, the point is erased, allowing the image plate to be used again.

ISSUE:

What is the proper classification of the subject merchandise under the HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

GRI 2(a) states that:

[a]ny reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule) entered unassembled or disassembled.

It is our position that, as entered together into the U.S., the goniometer, optical system, image plate, image plate reader, controller, and X-ray generator impart the essential character of a complete X-ray diffraction system. The X-ray generator itself makes up half of the value of the entire system. As has been noted, only the computer will be added after importation into the U.S.

Subheading 9022.19.00, HTSUS, provides for: "[a]pparatus based on the use of X-rays, whether or not for medical, surgical, dental or veterinary use, including radiography or radiotherapy apparatus: [f]or other uses."

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes, although not dispositive, are to be used to determine the proper interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128 (August 23, 1989). In part, Explanatory Note 90.22(I), HTSUS, (p. 1501) states that:

[t]he heading also covers:

(1) Special apparatus (X-ray diffraction and X-ray spectrometry equipment) used for the examination of the crystalline structure as well as the chemical composition of materials; the X-rays are diffracted by crystals and then made to fall on a photographic film or an electronic counter.
It is our position that, based upon the specific mention of X-ray diffraction equipment in Explanatory Note 90.22, HTSUS, the merchandise is classifiable under subheading 9022.19.00, HTSUS. Under GRI 2(a), the components imported together into the U.S. impart the essential character of a complete X-ray diffraction system.

HOLDING:

The incomplete X-ray diffraction system is classifiable under subheading 9022.19.00, HTSUS, which provides for: "[a]pparatus based on the use of X-rays, whether or not for medical, surgical, dental or veterinary use, including radiography or radiotherapy apparatus: [f]or other uses.". The general, column one rate of duty is 2.1 percent ad valorem.

Sincerely,

John Durant, Director

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