CLA-2 OT:RR:CTF:TCM H097678 RM
John M. Peterson, Esq.
Neville Peterson LLP
17 State Street – 19th Floor
New York, NY 10004
RE: Tariff Classification of Coaxial Cables Fitted With Connectors
Dear Mr. Peterson:
This is in response to your letter, dated February 5, 2010, to U.S. Customs and Border Protection (“CBP”), on behalf of Amphenol Optimize Manufacturing Company (“Amphenol”), in which you request a binding ruling on the classification of two models of coaxial cable fitted with connectors under the Harmonized Tariff Schedule of the United States (“HTSUS”). In reaching this decision, we also considered the arguments you raised in a telephone conference on May 26, 2010, with a member of my staff.
FACTS:
Amphenol proposes to import two models of coaxial cable fitted at both ends with radio frequency (“RF”) connectors, to wit: parts No. T6V77 QC2T-004 and S6V60-RS-003 (pictured below). The cables differ only in their length; the T6V77-QC2T-004 is approximately 18 inches long whereas the S6V60-RS-003 is approximately 36 inches long. They are both used to transmit voice, video and data over cable television and data networks.
Parts No. T6V77 QC2T-004 (top) and S6V60-RS-003 (bottom)
ISSUE:
Whether the cables are classified as “Coaxial cable” in subheading 8544.20.00, HTSUS, or in subheading 8544.42.20, HTSUS, as “Other electric conductors, for a voltage not exceeding 1,000 V: Fitted with connectors: Other: Of a kind used for telecommunications.”
LAW AND ANALYSIS:
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.
GRI 6 provides that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to GRIs 1 through 5.
The 2010 HTSUS subheadings under contention are the following:
8544 Insulated (including enameled or anodized) wire, cable (including coaxial cable) and other insulated electric conductors, whether or not fitted with connectors; optical fiber cables, made up of individually sheathed fibers, whether or not assembled with electric conductors or fitted with connectors:
8544.20.00 Coaxial cable and other coaxial electric conductors …
Other electric conductors, for a voltage not exceeding 1,000 V:
8544.42 Fitted with connectors:
Other:
Of a kind used for telecommunications …
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor 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. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 85.44 provides, in relevant part:
Provided 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. Subject to this condition, the heading includes wiring for interior work or for exterior use (e.g., underground, submarine or aerial wires or cables). These goods vary from very fine insulated wire to thick cables of more complex types.
…
The goods of this heading are made up of the following elements:
(A) A conductor - this may be single strand or multiple, and may be wholly of one metal or of different metals.
(B) One or more coverings of insulating material - the aim of these coverings is to prevent leakage of electric current from the conductor, and to protect it against damage. The insulating materials mostly used are rubber, paper, plastics, asbestos, mica, micanite, glass fibre yarns, textile yarns (whether or not waxed or impregnated), varnish, enamel, pitch, oil, etc. In certain cases the insulation is obtained by anodising or by a similar process (e.g., the production of a surface coating of metallic oxides or salts).
(C) In certain cases a metal sheath (e.g., lead, brass, aluminium or steel); this serves as a protective covering for the insulation, as a channel for an insulation of gas or oil, or as a supplementary conductor in certain co-axial cables.
(D) Sometimes a metal armouring (e.g., spiral wound steel or iron wire or strip), used mainly for protecting underground or submarine cable.
The insulated wires, cables, etc., of this heading may be in the form of:
Single or multiple strand insulated wire.
Two or more such insulated wires twisted together.
Two or more such insulated wires assembled together in a common insulating sheath.
Wire, 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. (emphasis added).
Heading 8544, HTSUS, provides in relevant part for “Insulated … cable (including coaxial cable) and other insulated conductors, whether or not fitted with connectors; …” (emphasis added). Relying on the common meaning of the term, CBP has previously defined the term “coaxial cable” as “an electric transmission line comprised of inner conductors surrounded by outer conductors with the inner and outer conductors being separated by an insulating material or medium.” See Headquarters Ruling Letter (“HQ”) W967779, dated March 30, 2006. EN 85.44 adds, in keeping with the text of heading 8544, HTSUS, that “wire, 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.” (emphasis added). The cables at issue are coaxial cables, as defined above, fitted with terminals at both ends. Accordingly, they are classified under heading 8544, HTSUS, in subheading 8544.20.00, the provision for “Coaxial cable and other coaxial electric conductors.”
Amphenol claims that subheading 8544.20.00, HTSUS, provides only for coaxial cables and other conductors imported in continuous lengths and not those fitted with connectors. In support, they argue, first, that according to the “proviso rule” of tariff interpretation (which states that, absent contrary legislative intent, a proviso modifies only the clause immediately preceding it), the phrase “whether or not fitted with connectors,” which appears in the first clause of heading 8544, HTSUS, modifies only the phrase “… other insulated electrical conductors.” They submit that, had Congress intended the provision to refer to more than the clause which precedes it, it would have made this intention clear by including the appropriate language, such as “all of the foregoing, whether or not ….”
We do not dispute that the phrase “whether or not fitted with connectors” in heading 8544, HTSUS, modifies only its last antecedent. See 2A N. Singer, Sutherland on Statutory Construction §47.33, p. 369 (6th rev. ed. 2000) (“Referential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent”). However, the items listed in the first clause of heading 8544, HTSUS, are separated by commas – as opposed to semicolons – and as such, said proviso modifies all of the items coming before it, to wit: (1) insulated wire, (2) insulated cable, and (3) other insulated conductors. Similarly, in Commercial Cookware Co. v. US, 938 F. Supp 875 (1996), referring to the first group of merchandise listed in heading 7010, HTSUS (“Carboys, bottles, flasks, jars, pots, vials, ampoules and other containers, of glass, of a kind used for the conveyance or packing of goods”), the Court of International Trade explained that the provisos “of glass” and “of a kind used for the conveyance or packing of goods,” apply to all of the listed items which precede the qualifying language.
Second, according to Amphenol, the phrase “whether or not fitted with connectors” does not apply to all of the subheadings appearing thereunder “… because it does not apply to all of the items listed in heading 8544 itself.” We disagree. U.S. courts have consistently stated that the phrase “whether or not,” when used in a superior heading, is considered to modify the article descriptions in the provisions under that heading, even if the phrase is not repeated in the provisions thereunder. See General Electric Co. v. United States, 83 Cust. Ct. 56, 61 (1979) (“the ‘invasive character’ of the ‘whether or not’ language in the superior heading would make recitation of such language in each of the intended subheadings redundant”). See also Montgomery Ward & Co. Inc. v. United States, 74 Cust. Ct. 56, 61 (1975) (holding that the “whether or not” phrase in the superior heading qualifies all of the provisions subordinate to the superior heading). But see Swiss Manufacturers’ Association v. United States, 39 Cust. Ct. 227, 229 (1957) (the doctrine of “invasive language” applies only in cases where the language of the invading provision is so sweeping, clear, and definite as to the goods subjected to its operation there is no room for interpretation as to the goods which Congress meant to include). In this case, the phrase “… whether or not fitted with connectors” constitutes a clear statement of Congressional intent to have that language apply to the subheadings that provide for insulated wire, cable or other electric conductors, including subheading 8544.20.00, HTSUS.
Third, Amphenol submits that the term “cable,” as used in subheading 8544.20.00, HTSUS, “must be interpreted as providing for a conductive material in continuous lengths, rather than … fixed lengths of coaxial conductors, terminated with connectors.” In support, Amphenol points to several dictionary definitions of the terms “cable” and “coaxial cable” which do not mention terminals or connectors. We note, however, that heading 8544, HTSUS, provides for “Insulated … cable (including coaxial cable) … whether or not fitted with connectors; …” and that, for the reasons stated in above, the proviso applies to the coaxial cables and other coaxial electrical conductors of subheading 8544.20.00, HTSUS.
Fourth, Amphenol asserts that the coaxial cables are classified in subheading 8544.42.20, HTSUS, as “Other electric conductors …: Fitted with connectors: Other: Of a kind used in telecommunications” because they are fitted with RF connectors and are thereby “dedicated exclusively to telecommunications use.” Again, even if the subject cables are “of a kind use in telecommunications,” they are precluded from classification in subheading 8544.42.20, HTSUS, because they are more specifically described by subheading 8544.20.00, HTSUS.
Finally, Amphenol claims that the cables are entitled to duty free treatment by reason of the obligations assumed by the United States as a party to the Information Technology Agreement (“ITA”), a plurilateral agreement concluded under the auspices of the World Trade Organization, which went into effect on July 1, 1997, pursuant to Presidential Proclamation No. 7011 (62 FR 35909 (July 2, 1997)). In particular, the company argues that the signatories agreed to provide duty free treatment to electrical conductors for telecommunications purposes, “as evidenced by the inclusion of HTS subheading 8544.42 in [Attachment] A of the pact.” Indeed, both the ITA and Presidential Proclamation No. 7011 provided for tariff reductions on three subheadings of electric conductors, for a voltage not exceeding 1,000 volts, of a kind used for telecommunications. However, the ITA does not determine the tariff classification of specific products. Accordingly, we do not agree with the requester’s contention that, based on the terms or intent of the ITA, this office is required to classify the product is a subheading other than 8544.20, HTSUS, at the six-digit subheading level.
Furthermore, the text of the EN to heading 8544, HTSUS, also the product of international consensus of the World Customs Organization’s Harmonized System Committee, supports our view. EN 85.44 indicates, in pertinent part, 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.”
Based on the foregoing, we conclude that the two coaxial cables at issue are classified under heading 8544 (8544.20.00), HTSUS, as “Insulated … cable (including coaxial cable) … whether or not fitted with connectors; …: Coaxial cable and other electrical conductors.” This determination is in keeping with Headquarters Ruling Letter (“HQ”) W967779, dated March 30, 2006, HQ 964018, dated June 7, 2000, and HQ 961830, dated October 2, 1998, wherein CBP classified coaxial cables fitted with connectors in subheading 8544.20.00, HTSUS.
HOLDING:
By application of GRI 1, Amphenol’s coaxial cables (parts No. T6V77 QC2T-004 and S6V60-RS-003) are classified under heading 8544 (8544.20.00), HTSUS, which provides for: “Insulated … cable (including coaxial cable) … whether or not fitted with connectors; …: Coaxial cable and other electrical conductors.” The 2010 column one, general rate of duty is: 5.3% ad valorem.
Duty rates are provided for convenience only and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/tata/hts/.
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.
Sincerely,
Ieva K. O’Rourke, Acting Chief
Tariff Classification and Marking Branch