CLA-2 CO:R:C:M 952364 KCC
Mr. Chris Hayes
Meyer Customs Brokers
8100 Mitchell Road
Eden Prairie, Minnesota 55344
RE: Phox programming unit cable; GRI 1; Nairobi Protocol;
9817.00.96; article specially designed for the use or
benefit of the physically handicapped; part; HRL 555965; HRL
086303; HRL 087559; Willoughby Camera Stores; insulated wire
with connectors; EN 85.44
Dear Mr. Hayes:
This is in response to your letter dated July 14, 1992, to
Customs in New York, on behalf of Maico Hearing Instruments,
regarding the tariff classification of the Phox programming unit
cable under the Harmonized Tariff Schedule of the United States
(HTSUS). A sample of the Phox programming unit cable was
submitted for examination.
FACTS:
The Phox programming unit cable (cable) under consideration
is an insulated electrical conductor with connectors at both
ends. It is designed to be used with a Phox hearing aid
programming unit.
In Headquarters Ruling Letter (HRL) 555965 dated November
21, 1991, the Phox hearing aid programming unit was classified in
item 870.67, Tariff Schedules of the United States (TSUS) (the
precursor provision to subheading 9817.00.96, HTSUS), as an
article specially designed for the use or benefit of the
physically handicapped. HRL 555965 held that the Phox hearing
aid programming unit was not considered a part of a hearing aid
which would exclude the programming unit from classification
under subheading 9817.00.96, HTSUS. You contend that "the cable
is an integral part" of the Phox programming unit and that the
Phox programming unit cannot function without the cable.
Therefore, you contend that the cable should also be classified
under subheading 9817.00.96, HTSUS.
ISSUE:
Whether the cable is classifiable under subheading
9817.00.96, HTSUS, as an article specially designed or adapted
for the use or benefit of the physically handicapped.
LAW AND ANALYSIS:
The Nairobi Protocol to the Agreement on the Importation of
Education, Scientific, and Cultural Materials Act of 1982,
established the duty-free treatment of certain articles for the
handicapped. Initially, Congress enacted this provision in the
Trade and Tariff Act of 1982, and Presidential Proclamation 5201
implemented this agreement in item 960.15, TSUS. This was a
temporary provision which expired on August 11, 1985. It was re-
enacted under item 870.67, TSUS, by section 1121 of the Omnibus
Trade and Competitiveness Act of 1988, and made retroactive to
August 12, 1985. Section 1121 of the Omnibus Trade and
Competitiveness Act of 1988 and Presidential Proclamation 5978
also provided for the implementation of the Nairobi Protocol by
inserting subheadings 9817.00.92, 9817.00.94, and 9817.00.96 into
the HTSUS. These tariff provisions specifically state that
"articles specially designed or adapted for the use or benefit of
the blind or other physically or mentally handicapped persons"
are eligible for duty free treatment.
Customs has ruled that the tariff provisions which encompass
the Nairobi Protocol apply to "articles" and not "parts" of
articles. See, HRL 555965 dated November 21, 1991, HRL 086303
dated February 13, 1990, and HRL 087559 dated October 9, 1990.
The issue of whether the cable is a part arose as a result of
statements by the importer that the programming unit with which
the cable will be utilized, will not function unless it is used
with the cable. Consistent with the traditional rule for what
constitutes a "part" under Customs law, this statement clearly
raises the question of whether the cable would fall within the
parameters of the "parts" definition.
Whether particular merchandise is considered a "part" for
tariff purposes has been the subject of voluminous judicial
examination. The traditional rule in this regard is "that a
'part' of an article is something necessary to the completion of
that article. It is an integral part...without which the article
to which it is joined could not function as such article."
United States v. Willoughby Camera Stores, Inc., 21 CCPA 332,
T.D. 46851 (1933), cert. denied, 292 U.S. 640, 54 S.Ct. 773, 78
L.Ed. 1492 (1933).
An examination of these factors reveals that the cable is a
part of the programming unit. The cable is necessary for the
programming unit to function. It is described as a special cable
through which the hearing aid and programming unit communicate.
The programming unit cannot complete its function of programming
the hearing aid without the cable connecting the two devices.
Therefore, the cable is an integral part of the programming unit
without which the programming unit to which it is joined cannot
function. Because the Phox programming unit cable is a "part" of
an article and not the "article", it is not classifiable under
subheading 9817.00.96, HTSUS, and classification must be sought
elsewhere.
Subheading 8544.41.00, HTSUS, provides for "Insulated
(including enameled or anodized) wire, cable (including coaxial
cable) and other insulated electric conductors, whether or not
fitted with connectors; optical fiber cable, made up of
individually sheathed fibers, whether or not assembled with
electric conductors or fitted with connectors...Other electric
conductors, for a voltage not exceeding 80 V...Fitted with
connectors."
Explanatory Note (EN 85.44) of the Harmonized Commodity
Description and Coding System (HCDCS) states that "[p]rovided
they are insulated, this heading covers electric wire, cable and
other conductors (e.g., braids, strip, bars) used as conductors
in electrical machinery, apparatus or installations." EN 85.44
additionally states that "[w]ire, cable, etc., remain classified
in this heading if cut to length or fitted with connectors (e.g.,
plugs, sockets, lugs, jacks, sleeves or terminals) at one or both
ends." HCDCS, Vol. 4, p. 1403-1404. The Explanatory Notes,
although not dispositive, are to be looked to for the proper
interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128. The Phox
programming unit cable does satisfy the terms of this heading
and, therefore, is properly classified under subheading
8544.41.00, HTSUS.
It should be noted that the issue of whether parts are
properly classified under heading 9817, HTSUS, as articles
specially designed or adapted for the use or benefit of the blind
or other physically or mentally handicapped persons is presently
pending before the U.S. Court of International Trade (CIT) in
Starkey Lab, Inc., Docket No. 91-02-00132 and Teletronics Pacing
System, Docket No. 91-07-00503. Normally, a ruling letter will
not be issued with respect to any issue which is pending before
the CIT. See, section 177.7(b), Customs Regulations (19 CFR
177.7(b)). However, as this ruling does not represent a change
in Customs position with regard to heading 9817, HTSUS, we have
answered your request for a ruling as set forth above.
HOLDING:
As the cable is considered to be a part of the programming
unit, it is excluded from classification under subheading
9817.00.96, HTSUS, as an article specially designed for the use
or benefit of the physically handicapped.
The Phox programming unit cable is properly classified under
subheading 8544.41.00, HTSUS, which provides for "Insulated
(including enameled or anodized) wire, cable (including coaxial
cable) and other insulated electric conductors, whether or not
fitted with connectors; optical fiber cable, made up of
individually sheathed fibers, whether or not assembled with
electric conductors or fitted with connectors...Other electric
conductors, for a voltage not exceeding 80 V...Fitted with
connectors." This tariff provision is dutiable at the rate of
5.3 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division