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NY N023555

March 18, 2008

MAR-2 OT:RR:NC:N1:105


Ms. Gail Cumins
Sharrets, Paley, Carter & Blauvelt
75 Broad Street
New York, NY 10004


Dear Ms. Cumins:

This is in response to your letter for Coldstream Health, dated February 1, 2008, received here February 20, 2008, requesting a ruling on whether imported x-ray cassette parts are required to be individually marked with the country of origin if it is later to be processed in the U.S. by a U.S. manufacturer. An unmarked sample of the completed x-ray cassette was submitted with your letter for review.

Your sample is “35 x 43 cm²” and about 1.5 cm thick. You indicate that the import will be used in Computed Radiography systems and that the import will consist of the carbon fiber front panel and an aluminum honeycomb composite back panel, both assembled in a metal frame. The components will be made in Japan and the USA, and the import will be assembled in Malaysia.

In the USA, “a photostimulable phosphor screen made in the United States is permanently affixed to one side of the aluminum honeycomb panel.” Since we do not see it, we take it that it is inserted between the other two panels. That is also consistent with the general description of x-ray cassettes on the www. (At minimum, we would have to remove several screws to see the inside layer.)

You give very little information on how the cassette functions, but we take it that the below, from www.crtechimaging.com, applies, at least generally, to your item: “It contains a phosphor layer of fine grain crystals (T)he storage phosphor imaging plate is exposed to X-Ray This process is non destructive and is stable for many hours to several days. The exposed imaging plate is subsequently read using a scanning red-laser system. (T)he phosphor crystals are irradiated by the excitation from the laser As they do so, they release blue light This released light is captured by detector electronics in the reader, digitized, and assembled into an image The plate can be reused numerous times as long as it is not physically damaged.”

Again, you provide very little information on the function of the carbon fiber and the aluminum panels, but, from the www, we understand that the carbon fiber provides rigidity although thin and is unusually able to let the x-rays pass through and that the aluminum, in addition to adding rigidity, reduces the x-rays passing out through it (the back.) An important function of both is to prevent light from getting to the phosphor layer.

From the information you supplied, the addition in the US of the US made phosphor layer is, at minimum, a major percent of the cost of the completed X-ray cassettes which your client sells to the users.

While we find the other precedents you cite to be of interest, we consider the closest analogy to be, as cited in HQ 732842 KG, February 23, 1990, “In ORR Ruling 217-69 (March 28, 1969), Customs ruled that a U.S.-made film base was substantially transformed when it was coated with photographic emulsion in Italy. The resulting x-ray film was considered a product of Italy for marking purposes.”

We do consider the import to be essentially a specialized housing for the phosphor screen, which is the one most essential to the imaging function that will be performed, in this case as a reusable, not a one time, imaging. The phosphor screen is the only layer that is intended to be changed by the x-rays, as only the emulsion, not the much thicker base material, is changed by the x-rays in x-ray film.

The marking statute, section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article.

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Section 134.41(b), Customs Regulations (19 CFR 134.41(b)), mandates that the ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain. Section 134.1(d) defines the ultimate purchaser as generally the last person in the U.S. who will receive the article in the form in which it was imported. 19 CFR 134.1(d)(1) states that if an imported article will be used in manufacture, the manufacturer may be the ultimate purchaser if he subjects the imported article to a process which results in a substantial transformation of the article. The case of U.S. v. Gibson-Thomsen Co., Inc., 27 C.C.P.A. 267 (C.A.D. 98) (1940), provides that an article used in manufacture which results in an article having a name, character or use differing from that of the constituent article will be considered substantially transformed and that the manufacturer or processor will be considered the ultimate purchaser of the constituent materials. In such circumstances, the imported article is excepted from marking and only the outermost container is required to be marked. See, 19 CFR 134.35.

In this case, the imported x-ray cassette parts are substantially transformed as a result of the U.S. processing, and therefore the U.S. manufacturer is the ultimate purchaser of the imported x-ray cassette parts and under 19 CFR 134.35 only the containers which reach the ultimate purchaser are required to be marked with the country of origin Malaysia.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR Part 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist J. Sheridan at 646-733-3012.


Robert B. Swierupski

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