Mr. Phil Kudla
Expeditors Tradewin, LLC
11101 Metro Airport Center Drive
Bldg. M2, Ste. 110
Romulus, MI 48174

RE: Tariff classification of non-medical brain-computer interface devices

Dear Mr. Kudla:

This is in response to your request on behalf of your client, NeuroSky, Inc., submitted on August 4, 2009, to U.S. Customs and Border Protection (“CBP”), National Commodity Specialist Division, for a binding ruling on the tariff classification of certain non-medical brain-computer interface devices (“BCIs”) under the Harmonized Tariff Schedule of the United States (HTSUS). Your ruling request, along with a number of samples, was forwarded to this office for a response. In reaching our decision, we have taken into consideration additional information supplied to staff of this office during a teleconference on December 2, 2009, and in a submission dated December 8, 2009.


The subject merchandise consists of three types of non-medical EEG (electroencephalogram, i.e., brainwave) detection, processing, and transmission devices, referred to as commercial brain-computer interfaces. They are the MindSet; the MindSet Lite; and the MindBand, which has three variations: the Sub-Assembly, the Headband Style, and the Visor Style.

According to the information submitted, all models contain: (1) Neurosky ThinkGear modules- a computer board with a processor that uses NeuroSky’s proprietary algorithms to filter and process brainwaves; (2) a passive forehead sensor as well as ground and reference contacts for detecting brainwave electrical frequencies; and (3) a radio frequency module that uses Bluetooth technology to transmit the processed brainwave signals to receiving devices such as a personal computer (“PC”), cell phone, game console, or electronic toy. However, some models may also be plugged directly into a game console or personal computer using a USB cable. The MindSet also has secondary features, such as audio, that allow it to be used with an MP3 player, and a microphone/speaker so that it can be used with a cellular phone.

The microprocessor used in the ThinkGear modules is the Atmel ATMEGA32, which has embedded flash memory to store both the processing program and data for the execution of the program. In addition, the ATMEGA32 can, by logical decision-making, adjust certain aspects of its programming as it runs, such as by discarding readings with too much noise, holding the output value at the last known acceptable value until the signal noise has subsided and then resuming regular data processing. All of the modules are factory programmed and cannot be reprogrammed by the end user. As a result, while the ATMEGA32 has an arithmetic logic unit, none of the modules can perform random arithmetical computations.

The way in which the subject merchandise is imported varies based on sales and logistical channels, but all of the models may be imported as a kit in retail boxes or as individual devices to be packaged for pick and pack fulfillment. Only the individual devices are discussed in this ruling.


Whether devices that convert and transmit brain waves to other machines in order to control those machines should be classified under heading 8471, HTSUS, as automatic data processing machines, under heading 8526, HTSUS, as radio remote control apparatus, or under heading 9018, HTSUS, as medical devices.


Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule 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 and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.

The HTSUS provisions under consideration in this case are as follows:

8471 Automatic data processing machines and units thereof; magnetic or optical readers, machines for transcribing data onto data media in coded form and machines for processing such data, not elsewhere specified or included: * * * * * * * * * * * * * 8526 Radar apparatus, radio navigational aid apparatus and radio remote control apparatus: 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:

Note 5 to Chapter 84, HTSUS, states, in pertinent part:

(A) For the purposes of heading 8471, the expression "automatic data processing machines" means machines capable of: (i) Storing the processing program or programs and at least the data immediately necessary for the execution of the program; (ii) Being freely programmed in accordance with the requirements of the user; (iii) Performing arithmetical computations specified by the user; and (iv) Executing, without human intervention, a processing program which requires them to modify their execution, by logical decision during the processing run.


(C) Subject to paragraphs (D) and (E) below, a unit is to be regarded as being part of an automatic data processing system if it meets all of the following conditions: (i) It is of a kind solely or principally used in an automatic data processing system; (ii) It is connectable to the central processing unit either directly or through one or more other units; and (iii) It is able to accept or deliver data in a form (codes or signals) which can be used by the system. Separately presented units of an automatic data processing machine are to be classified in heading 8471.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. 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. CBP believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

The EN to heading 8471, HTSUS, states, in pertinent part:


Data processing is the handling of information of all kinds, in preestablished logical sequences and for a specific purpose or purposes.


(A) AUTOMATIC DATA PROCESSING MACHINES   The automatic data processing machines of this heading must be capable of fulfilling simultaneously the conditions laid down in Note 5 (A) to this Chapter….

Thus, machines which operate only on fixed programs, i.e., programs which cannot be modified by the user, are excluded even though the user may be able to choose between a number of such fixed programs.  

(B) SEPARATELY PRESENTED UNITS   ….Constituent units are those defined in Part (A) above and in the following paragraphs, as being parts of a complete system.

An apparatus can only be classified in this heading as a unit of an automatic data processing system if it:   (a)   Performs a data processing function; (b)   Meets the following criteria set out in Note 5 (C) to this Chapter:

(i)    It is of a kind solely or principally used in an automatic data processing system; (ii)   It is connectable to the central processing unit either directly or through one or more other units; and (iii)  It is able to accept or deliver data in a form (codes or signals) which can be used by the system.   (c) Is not excluded by the provisions of Notes 5 (D) and (E) to this Chapter. The EN to heading 8526, HTSUS, states, in pertinent part, the following:

This heading includes:

(12) Radio apparatus for the detonation of mines, or for the remote control of machines.

The EN to heading 9018, HTSUS, states, in pertinent part, the following:

This heading 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. Instruments and appliances for anatomical or autoptic work, dissection, etc., are also included, as are, under certain conditions, instruments and appliances for dental laboratories (see Part (II) below). The instruments of the heading may be made of any material (including precious metals).

You suggest classification in heading 9018, HTSUS, which provides for medical, surgical, dental or veterinary instruments and other electro-medical apparatus. However, the subject merchandise has no medical application and is not used in the professional practice of medical professionals. As a result, the subject merchandise cannot be classified in heading 9018, HTSUS, because it is not described by the terms of the heading. See EN 90.18.

You also suggest classification in heading 8471, HTSUS, as an automatic data processing machine. In order to qualify for that heading, however, the subject devices must be capable of simultaneously performing all four functions listed in Note 5(A) to Chapter 84, HTSUS or meet the requirements of Note 5(C) to that chapter. See EN 84.71(1)(A).

In the present case, the devices contain an Atmel ATMEGA32 microcontroller with an embedded flash memory that stores the processing program or execution data and that can automatically make logical decisions during the processing run. They therefore meet the requirements of Note 5(A)(i) and (iv). However, the subject merchandise is factory-programmed and its programming can only be changed by NeuroSky’s personnel and not by the end user. Consequently, the merchandise does not meet the requirements of Note 5(A)(ii), which requires that ADP machines be freely programmable. A freely programmable ADP machine is one for which applications can be written, does not impose artificial limitations upon such applications, and will accept new applications that allow the user to manipulate the data as deemed necessary by the user. See, e.g., Optrex Am., Inc. v. United States, 475 F.3d 1367, 2007 U.S. App. LEXIS 2596, 28 Int’l Trade Rep. (BNA) 2153 (Fed. Cir. 2007); HQ 964880, dated December 21, 2001. In addition, because they have been factory programmed, the devices cannot perform arithmetical computations specified by the user as required by Note 5(A)(iii). As a result of not being able to simultaneously fulfill all of the requirements of Note 5(A) to Chapter 84, HTSUS, the subject merchandise cannot be classified as ADP machines.

In addition, the subject BCIs cannot be classified under heading 8471, HTSUS, as units of an ADP machine because they do not meet all of the requirements of Note 5(C) to Chapter 84, HTSUS. Specifically, they are not solely or principally used with ADP machines and perform a specific function other than data processing. See EN 84.71(1)(B).

The MindSet, the MindSet Lite, and the MindBand all use Bluetooth, a technology that employs radio waves to connect to, and, in this case, control a machine from a distance, whether that machine is a computer or a video game console. Heading 8526, HTSUS, provides for remote controls that function via radio frequencies and that are used to control machines from a distance. Accordingly, the devices at issue must be classified in that heading.

CBP has long classified radio wave remote controls in heading 8526, HTSUS. See, e.g., HQ 953013, dated April 15, 1993 (radio remote control apparatus that controlled various car functions); NY N024612, dated March 28, 2008 (remote control apparatus, some models of which were designed for and used solely with automatic data processing machines).


By operation of GRI 1, the “MindSet,” the three different varieties of the “MindBand,” and the “MindSet Lite” are classified under heading 8526, HTSUS. They are specifically provided for in subheading 8526.92.00, HTSUS, as “Radar apparatus, radio navigational aid apparatus and radio remote control apparatus: Radio remote control apparatus.” The column one, general rate of duty is 4.9% ad valorem.

Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at

A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.


Gail A. Hamill, Chief
Tariff Classification and Marking Branch