• HQ H096891
• Dec 20, 2010

• Type : Classification • HTSUS : 9022.90.60
•  Related:   14210; 100468; 100169; 35127; R00378; N027388   

CLA-2 OT:RR:CTF:TCM H096891 CkG

TARIFF NO: 9022.90.60

Port Director
Port of Buffalo
U.S. Customs and Border Protection
726 Exchange Street, Suite 400Buffalo, NY 14210

Re: Application for Further Review of Protest No. 0901-09-100468; overhead tube suspension

Dear Port Director:

This is our decision regarding the Application for Further Review (“AFR”) of Protest No. 0901-09-100468, filed on behalf of Carestream Health, Inc. (“Protestant”), against U.S. Customs and Border Protection’s (CBP’s) classification of overhead tube cranes under the Harmonized Tariff Schedule of the United States (HTSUS). FACTS:

The instant article is an overhead tube suspension (OTS), a machine designed to house and position specific x-ray equipment. The OTS is manufactured by Suinsa Medical Systems and is a component of the Kodak Direct View DR7500 digital radiographic system. The OTS consists primarily of a longitudinal rail assembly and a telescope and carriage assembly. An x-ray generator, control console and collimeter are permanently mounted to the OTS after importation. A telescoping tube arm extends and retracts from the transverse carriage, which moves along two parallel longitudinal ceiling rails as well as two perpendicular rails bridging the parallel rails. An x-ray generator, control console and collimeter are permanently mounted to the OTS after importation. The x-ray generator is mounted to the telescope tube mount of the crane, and is connected to the hose assembly. The tube arm extends from the transverse carriage to lower the generator into position, and retracts again to lift the generator out of the way when not in use. The transverse carriage moves along the rails and transverse bridge to laterally position the generator. The Kodak Direct View DR7500 system further includes an elevating table and wall stand.

The nine entries subject to this protest were entered between May 30, 2008, and July 23, 2008, at the Port of Buffalo, each consisting of the telescope portion (including the motors and electronics) and the hose assembly of the OTS device, entered in headings 8479.89 (“other machines and mechanical appliances”), 8479.90 (“parts”), and 9022.90 (“other” x-ray apparatus, including parts and accessories), HTSUS. The imported telescope, hose and mounting assemblies included the hardware needed for such assembly in the entries. The bridge rails and mounts thereto are imported separately. The device, including the collimater, x-ray generator and control console which are not included in the instant entries, is assembled in the U.S.  CBP liquidated the entries between April 10, 2009 and June 05, 2009, in heading 9022, HTSUS. Protestant claims classification in heading 8426, HTSUS, or, in the alternative, heading 8428, HTSUS.

ISSUE:

Whether the instant articles are classified in heading 8426, HTSUS, as a crane, heading 8428, HTSUS, as a lifting or handling machine, heading 8431, HTSUS, as parts a crane of heading 8426, HTSUS, or as parts of an x-ray apparatus in heading 9022, HTSUS.

LAW AND ANALYSIS:

Initially, we note that the matter protested is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification and on the rate and amount of duties chargeable. The protest was timely filed within 180 days of liquidation of the entries. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2007)).

The Port of Buffalo properly approved the Application for Further Review of Protest No. 3901-08-100169, because the decision against which the protest was filed involves specific factual and legal questions that have not been the subject of a Headquarters ruling or court decision.

Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs).  GRI 1 provides that classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes.  In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings or notes do not require otherwise, the remaining GRIs 2 through 6 may be applied.

GRI 2(a) provides that any 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. The HTSUS provisions under consideration are as follows:

8426: Ships' derricks; cranes, including cable cranes; mobile lifting frames, straddle carriers and works trucks fitted with a crane:

Overhead traveling cranes, transporter cranes, gantry cranes, bridge cranes, mobile lifting frames and straddle carriers:

8426.11.00: Overhead traveling cranes on fixed support . . .

* * * * * 8428 Other lifting, handling, loading or unloading machinery (for example, elevators, escalators, conveyors, teleferics):

8428.90.01 Other machinery….

* * * * * 8431: Parts suitable for use solely or principally with the machinery of headings 8425 to 8430:

Of machinery of heading 8426, 8429 or 8430:

8431.49: Other:

8431.49.10: Of machinery of heading 8426 . . .

* * * * * 9022: Apparatus based on the use of X-rays 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, high tension generators, control panels and desks, screens, examination or treatment tables, chairs and the like; parts and accessories thereof:

9022.90: Other, including parts and accessories:

Other:

Parts and accessories:

Other:

9022.90.60: Of apparatus based on the use of X-rays . . . * * * * * Section XVI Note 1:

This section does not cover: (m) Articles of chapter 90

Section XVI, Note 2:

Subject to note 1 to this section, note 1 to chapter 84 and to note 1 to chapter 85, parts of machines (not being parts of the articles of heading 8484, 8544, 8545, 8546 or 8547) are to be classified according to the following rules: … Other parts, if suitable for use solely or principally with a particular kind of machine, or with a number of machines of the same heading (including a machine of heading 8479 or 8543) are to be classified with the machines of that kind or in heading 8409, 8431, 8448, 8466, 8473, 8503, 8522, 8529 or 8538 as appropriate. However, parts which are equally suitable for use principally with the goods of headings 8517 and 8525 to 8528 are to be classified in heading 8517;

Section XVI Note 3:

Unless the context otherwise requires, composite machines consisting of two or more machines fitted together to form a whole and other machines designed for the purpose of performing two or more complementary or alternative functions are to be classified as if consisting only of that component or as being that machine which performs the principal function.

Chapter 90, Note 1:

This chapter does not cover:

(g) Pumps incorporating measuring devices, of heading 8413; weight-operated counting or checking machinery, or separately entered weights for balances (heading 8423); lifting or handling machinery (headings 8425 to 8428);…

Chapter 90, Note 2:

Subject to note 1 above, parts and accessories for machines, apparatus, instruments or articles of this chapter are to be classified according to the following rules: … (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;

* * * * * The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the HTSUS. While not legally binding or dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).

GRI 2(a) provides that any 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.

The EN to GRI 2 provides, in pertinent part, as follows: RULE 2 (a) (Incomplete or unfinished articles) The first part of Rule 2 (a) extends the scope of any heading which refers to a particular article to cover not only the complete article but also that article incomplete or unfinished, provided that, as presented, it has the essential character of the complete or finished article. * * * * * EN 84.26 provides, in pertinent part: The heading covers a number of intermittentaction lifting or handling machines. MULTIFUNCTION MACHINES … Lifting, loading, handling, etc., machines presented separately are, however, classified in this heading even if intended for incorporation in other machines … The heading covers:

(1) Bridge cranes, which consist of a powerful lifting unit suspended from a heavy cross beam or “ bridge ”, the whole moving on wide gauge rails. Gantry cranes and overhead travelling cranes in which the beam itself runs on rails fixed on walls or on suitable supporting metal structures.

* * * * * EN 84.28 provides, in pertinent part, as follows:

With the exception of the lifting and handling machinery of headings 84.25 to 84.27, this heading covers a wide range of machinery for the mechanical handling of materials, goods, etc. (lifting, conveying, loading, unloading, etc.). They remain here even if specialised for a particular industry, for agriculture, metallurgy, etc.

* * * * *

The General EN to Chapter 90 provides, in pertinent part:

In addition to the exclusions mentioned in the text of the Explanatory Notes, the following are always excluded from this Chapter:

Lifting or handling machinery (headings 84.25 to 84.28 and 84.86);… …

* * * * * EN 90.22 provides, in pertinent part, as follows: (I) APPARATUS BASED ON THE USE OF XRAYS   The fundamental element of this apparatus is the unit containing the Xray 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. …

PARTS AND ACCESSORIES

Subject to the provisions of Notes 1 and 2 to this Chapter (see the General Explanatory Note), parts and accessories identifiable as being solely or principally for use with Xray apparatus, etc., are also classified in this heading. Such parts and accessories include :    * * * * * We note first that merchandise is classified in its condition when imported. The various components of the OTS device are not imported together; the subject entries cover only the telescope portion, mounting carriage and hose assembly. Protestant argues that, pursuant to GRI 2(a), the telescope portion and hose assembly and their mounting equipment and carriage form the essential character of the unassembled OTS device. However, before we can consider classification by applying the principle of GRI 2(a), we first have to consider whether classification is possible using GRI 1, that is, according to the terms of the headings and any applicable legal notes. See GRI 1. In any case, we note that in protestant’s own manual for the DR7500 radiographic system, of which the OTS is one mechanized portion, the OTS includes the x-ray tube, collimeter and associated controls. Hence, the OTS is not just a suspension system, or, as protestant would have it, a crane; it also includes a major portion of the radiographic equipment. Therefore, the parts of the OTS included in the entries at hand can not be considered an unassembled machine under GRI 2(a), whether that machine is a crane of heading 8426, other lifting and handling machine of 8428, HTSUS, or radiographic machine of 9022, HTSUS.

The courts have considered the nature of "parts" under the HTSUS and two distinct though not inconsistent tests have resulted. In Bauerhin Technologies Limited Partnership, & John V. Carr & Son, Inc. v. United States, ("Bauerhin") 110 F.3d 774 (Fed. Cir. 1997), the court identified two distinct lines of cases defining the word "part". Consistent with United States v. Willoughby Camera Stores, ("Willoughby Camera") 21 C.C.P.A. 322 (1933), one line of cases holds that a part of an article "is something necessary to the completion of that article without which the article to which it is to be joined, could not function as such article." Id. at 324. The other line of cases evolved from United States v. Pompeo, ("Pompeo") 43 C.C.P.A. 9 (1955), which held that a device may be a part of an article even though its use is optional and the article will function without it, if the device is dedicated for use upon the article, and, once installed, the article will not operate without it. Under either line of cases, an imported item is not a part if it is "a separate and distinct commercial entity". ABB, Inc. v. United States, 28 Ct. Int"™l Trade 1444, 1452-53 (2004). The definition of "parts" was also discussed in Rollerblade, Inc. v. United States, 282 F. 3d 1349, 1353 (Fed. Cir. 2002), wherein the court defined parts as "an essential element or constituent; integral portion which can be separated, replaced, etc." Id. at 1353. The telescope, motors, electronics and hose assembly are essential components of the OTS device, without which the OTS could not function. They can only be used with the OTS device. Similarly, they are integral components of the Kodak Direct View 7500 system, in order to support and position the x-ray equipment. The instant entries are therefore “parts” pursuant to the above criteria. If the OTS is classifiable as a crane in heading 8426, HTSUS, the parts subject to instant protest will therefore be classified at GRI 1 in heading 8431, HTSUS, as parts of a machine of heading 8425 to heading 8430, HTSUS. Similarly, if the OTS is classified as a lifting or handling device of heading 8428, the instant parts would also be classified in heading 8431.  If the DR7500 device is classified as an x-ray apparatus of heading 9022 (or part or accessory thereof), the parts will be classified therein at GRI 1.

Heading 8426, HTSUS, provides for, inter alia, overhead traveling cranes on fixed support. The Merriam-Webster Dictionary Online defines “crane” as follows:

a : a machine for raising, shifting, and lowering heavy weights by means of a projecting swinging arm or with the hoisting apparatus supported on an overhead track

See http://www.merriam-webster.com/dictionary/crane.

The Compact Oxford English Dictionary Online similarly defines “crane” as:

1 a tall machine used for moving heavy objects by suspending them from a projecting arm.

See http://www.askoxford.com/concise_oed/crane_1?view=uk.

Dictionary.com offers the following definition of “crane”: Machinery. a device for lifting and moving heavy weights in suspension.

See http://dictionary.reference.com/browse/crane?&qsrc=.

EN 84.26 also provides some additional clarification of this provision, noting that heading 8426, HTSUS, covers overhead traveling cranes in which the beam itself runs on rails fixed on walls or on suitable metal structures. See also, http://www.squared.com/us/applications/oem_apps.nsf/LookupFiles/0108AB9709.pdf/$file/0108AB9709.pdf, which provides the following general description of overhead traveling cranes: “Overhead traveling cranes operate using three motorized movements (lifting, trolley traverse, and bridge traverse), which provide handling within the volume of space under the crane.” Another site explains: “Not to be confused with various types of mobile cranes used in construction projects, overhead cranes are variously structured machines that "travel" along a runway structure or pair of tracks located above the work floor of a plant or factory. They are further characterized by the presence of a fixed or trolley-mounted hoisting system that is connected to the tracks by a bridge structure, which consists of either a single or double girder.” http://business. highbeam.com/ industry-reports/equipment/overhead-traveling-cranes-hoists-monorail.systems.

While the OTS contains some of the elements of an overhead traveling cranes of the kind described above, it does not conform to the common definitions of “crane” or the images of overhead traveling cranes referenced above, all of which indicate that cranes are designed and used to transport or position multiple loads from one location to another, and are not permanently mounted to a single device. Regardless of whether they are actually used with a single device, cranes and other lifting and handling machines are capable of being used with multiple devices. Evidently the OTS system does not transport and deposit a load to another location; it is used solely to support and position the x-ray apparatus. We further note that protestant itself entered some of the merchandise subject to this protest in heading 9022 as parts or accessories of x-ray equipment, as have importers of substantially similar merchandise. CBP has also classified similar merchandise in heading 9022, HTSUS. See NY R00378, dated June 7, 2004; NY N027388, dated May 22, 2008.

Heading 9022, HTSUS, provides for, inter alia, x-ray apparatus and parts and accessories thereof. The Kodak Direct View system is a radiographic/x-ray apparatus. The OTS is designed and marketed to be solely used with the x-ray equipment it houses, as a component of the larger Kodak system. The OTS is, for practical purposes, necessary for the proper operation of the x-ray equipment it is designed to complement. The OTS is thus classifiable as a part of an x-ray apparatus of heading 9022, HTSUS. The OTS parts at issue in the subject protest are therefore also parts of a machine of heading 9022, HTSUS. As parts used solely with an article of heading 9022, HTSUS, the instant articles are classifiable in heading 9022, HTSUS, pursuant to Note 2(b) to Chapter 90.

Finally, even if the OTS in its entirety were classifiable in headings 8426 or 8428, HTSUS, heading 9022 would still prevail over classification in Chapter 84. Because Note 1(m) to Section XVI and Note 1(g) to Chapter 90 conflict, classification cannot be resolved according to these legal notes. Similarly, Note 2(b) to Section XVI and Note 2 to Chapter 90 do not apply; even if we considered the instant articles to be parts of a machine of Section XVI, they are clearly equally parts of a machine of Chapter 90, and therefore not solely or principally used with a machine of Section XVI. We thus turn to Note 3 to Section XVI, which states that a composite machine should be classified according to the machine which performs the principal function. The Kodak Direct View 7500 system is described in the product manual as a digital radiography system, of which the OTS is merely one of several modular components. See http://www.carestreamhealth.com/directview-dr-7500-system.html. Moreover, we note that the Carestream website and Kodak Direct View 7500 manual describe the OTS as an “overhead tube suspension”, not an overhead tube crane, as stated by the protestant.  The OTS is thus a support system for an x-ray apparatus, subsidiary to the x-ray machine for which it is made.  This is supported by the manufacturer’s description of the OTS as an “x-ray tube overhead support system.” http://www.suinsamedicalsystems.com. Manufacturers of competing devices also emphasize the secondary role of the suspension system. For example, Del Medical describes its EPEX-Omniflex IV device as a ““subsystem” of a radiographic machine. Finally, we note that the manufacturer of the OTS, Suinsa, and its competitors, are all manufacturers of medical devices/x-ray imaging equipment. See http://www.zapconnect.com/companies/index.cfm/fuseaction/companies_detail/eregnum/1000404222.html. The principal function of the Kodak Direct View 7500 system is therefore to take x-rays; the overhead suspension component functions as a support/positioning device for the x-ray tube. Thus, the parts subject to the instant entries are classified in heading 9022, HTSUS.

HOLDING:

By application of GRI 1, the parts of the Kodak Direct View DR7500 radiographic system subject to the instant protest are classified in heading 9022, HTSUS, specifically subheading 9022.90.60, which provides for “Apparatus based on the use of X-rays 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, high tension generators, control panels and desks, screens, examination or treatment tables, chairs and the like; parts and accessories thereof: Other, including parts and accessories: Parts and accessories: Other: Of apparatus based on the use of x-rays.” The 2009 general column one, rate of duty is 0.8% ad valorem.

You are instructed to deny the protest in full. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to 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 in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision, Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.


Sincerely,

Myles B. Harmon, Director,
Commercial and Trade Facilitation Division