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HQ 960262




October 20, 1998

CLA-2 RR:CR:GC 960262 HMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9018.90.75

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

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