CLA-2 CO:R:C:M 951063 CMS
Area Director of Customs
Jamaica, NY 11430
RE: Protest No. 1001-91-105866; X-Ray Image Intensifier Tube;
Apparatus For Medical Or Surgical Use; Convert X-Ray Into
Visible Light; Thermionic; Cathode; Photocathode; 8540.20.40
Dear Area Director:
The following is our decision regarding the Protest and
Request for Further Review No. 1001-91-105866, dated August 2,
1991. The protest was filed against your liquidation of the
entry of certain products which were classified in subheading
8540.20.40, Harmonized Tariff Schedule of the United States
The merchandise consists of certain X-ray image intensifier
tubes. The tubes amplify X-rays into visible light in medical
and surgical uses such as fluoroscopy, fluorography, cardiography
Is the merchandise classified as apparatus based on the use
of X-rays for medical or surgical uses in Heading 9022, HTSUS, or
as thermionic, cold cathode or photocathode tubes in Heading
LAW AND ANALYSIS:
The HTSUS provides that the classification of articles
is governed by the General Rules of Interpretation (GRI's).
GRI 1 states in pertinent part that "...classification shall be
determined according to the terms of the headings and any
relative section or chapter notes...".
Heading 9022 in part describes apparatus based on the use of
X-rays for medical or surgical uses. Heading 8540 in part
describes thermionic, cold cathode and photocathode tubes.
In HQ 088755 (June 2, 1992), a copy of which is attached, we
held that similar tubes were classified in Heading 9022, HTSUS.
We found that the tubes were described as Heading 9022 apparatus,
and were thus excluded from Heading 8540 pursuant to Section XVI
Note 1(m), which excludes articles of Chapter 90 from Section
XVI. Because the tubes were found to be Heading 9022
"apparatus", they were not excluded from Chapter 90 pursuant to
Chapter 90 Note 2(a), which relates to "parts and accessories
for...apparatus..." (emphasis added).
The protestant claims that the tubes should be classified in
subheading 9022.90.60, as other parts and accessories of Heading
9022 apparatus. The protestant alternatively claims that the
tubes should be classified in subheading 9022.30.00, as X-ray
tubes. However, as we explained in HQ 088755, the products are
described by and are properly classified in subheading 9022.11.00
as apparatus based on the use of X-rays for medical, surgical,
dental or veterinary uses.
The X-ray image intensifier tubes under consideration are
classified in subheading 9022.11.00, HTSUS. Because the
reclassification of the merchandise would result in the same or a
lower rate of duty than that claimed by the protestant, the
protest should be allowed 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.
John Durant, Director
Commercial Rulings Division