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HQ 955892


March 3, 1994

CLA-2 CO:R:C:M 955892 MBR

CATEGORY: CLASSIFICATION

TARIFF NO.: 9022.90.20

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
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."

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, 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
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,

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,


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