CLA-2 OT:RR:CTF:TCM H007657 HkP
Doreen Edelman, Esq.
Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
Lincoln Square
555 Eleventh Street, N.W.
Sixth Floor
Washington, D.C. 20004
RE: Reconsideration of NY N004130; classification of an operating room spinal cord stimulation lead extension cable and a spinal cord stimulation lead assembly cable
Dear Ms. Edelman:
This is in response to your request for reconsideration of New York Ruling Letter (“NY”) N004130, issued on December 29, 2006, to your client, Kingstec Industries (“Kingstec”), concerning the classification of certain merchandise under the Harmonized Tariff Schedule of the United States (“HTSUS”). At issue is the correct classification of an operating room (“OR”) extension cable (part # 6060010-003) and an OR spinal cord stimulation lead extension cable assembly (part # 6060001-002) (“OR cable assembly”) . U.S. Customs and Border Protection previously classified this merchandise under subheading 8544.41.8000, HTSUSA, as: “Insulated wire … fitted with connectors: Other electric conductors, for a voltage not exceeding 80V: Fitted with connectors: Other.”
It is your contention that subheading 8544.41.8000 (now, 8544.42.9000), HTSUSA, does not describe the merchandise at issue. You believe that the merchandise is properly classified under heading 9018, HTSUS, as instruments and appliances used in medical and surgical sciences. In the alternative, you believe that the cables are classified under heading 8543, HTSUS, as electrical machines and apparatus, having individual functions, not specified or included elsewhere in Chapter 85.
For the reasons set forth below, we hereby affirm NY N004130.
FACTS:
The merchandise at issue is electric cables (insulted wires) fitted with connectors and is a part of the Precision™ Spinal Cord Stimulator (SCS) System, a pain management system implanted into the human body. According to Boston Scientific, the developer of the SCS System, the System is made up of a remote control – to adjust therapy; leads – small, flexible, implantable wires that deliver pain-masking stimulation to the spinal cord; a trial device or external trial stimulator – placed outside the body it generates pain-masking electrical impulses; and cables, which connect the leads to the trial device. The function of the cables, which is the only merchandise at issue, is described by you as follows:
The product is an operating room spinal cord stimulation lead assembly with extension cable comprised of an operating room (“OR”) spinal cord stimulation lead assembly cable and an operating room spinal cord lead extension cable. The operating room spinal cord stimulation lead assembly is an integral part of the nerve stimulation device and can only be used with the nerve stimulation device. …
The product is attached on one end to a spinal cord stimulation lead that is inserted into a patient’s back. On the other end the product is attached to the nerve stimulation device which is a stimulation pulse generator. The product is used by the doctor to facilitate moving the lead around the nerves in the lower back to determine the best location for pain relief. The product is then worn by the patient for a test period of approximately three days. This test period will determine whether the patient will benefit from an implanted device. The spinal cord stimulation lead and the spinal cord nerve stimulation device will not function without the operating room stimulation lead assembly or, where necessary, without the operating room spinal cord stimulation lead assembly.
Samples of the OR lead extension cable and the OR cable assembly were provided for our examination. Neither cable is used internally.
ISSUE:
What are the correct classifications of the OR cable assembly and the OR lead extension cable?
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.
Pursuant to Title 19 United States Code, Section 3005, the Harmonized Tariff Schedule of the United States was amended to reflect changes recommended by the World Customs Organization. On January 4, 2007, Presidential Proclamation 8097 containing these changes was published in the Federal Register. See 72 FR 453, Volume 72, No. 2. The proclaimed changes are effective for goods entered or withdrawn from warehouse for consumption on or after February 3, 2007. Pursuant to these changes, merchandise previously classified in subheading 8544.41.8000 is now classified in subheading 8544.42.9000, HTSUSA. Merchandise previously classified in subheading 8543.89.8500 is now classified in subheading 8543.70.8500, HTSUSA. The goods of subheading 9018.19.4000, HTSUSA, were unaffected by the changes.
The 2008 HTSUS provisions under consideration are as follows:
8543 Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof:
* * *
8543.70 Other machines and apparatus:
* * *
Other:
* * *
Other:
8543.70.8500 For electrical nerve stimulation …..
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:
* * *
Other electrical conductors, for a voltage not exceeding 1,000 V:
8544.42 Fitted with connectors:
* * *
Other:
8544.42.9000 Other …..
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:
Electro-diagnostic apparatus (including apparatus for functional exploratory examination or for checking physiological parameters); parts and accessories thereof:
* * *
9018.19 Other:
9018.19.4000 Apparatus for functional exploratory examination, and parts and accessories thereof …..
Legal Note 1(m) to Section XVI, of which chapter 85 is a part, excludes articles of chapter 90 from classification in Section XVI.
Legal Note 2 to Chapter 90 provides, in relevant part:
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:
Parts and accessories which are goods included in any of the headings of this chapter or of chapter 84, 85 or 91 (other than heading 8485, 8548 or 9033) are in all cases to classified in their respective headings[.]
It is your contention that CBP incorrectly excluded the OR cable assembly and extension cable from classification under heading 9018, HTSUS, by applying Note 2(a) to Chapter 90. You believe that the products at issue are not parts of a good of Chapter 90, but are medical instruments or appliances of heading 9018, HTSUS, and are specifically provided for in subheading 9018.19.4000, as “apparatus for functional examination.” As such, Note 2(a) to Chapter 90 does not apply and the OR cable assembly and extension cable remain classified in the chapter.
Heading 9018, HTSUS, provides for, among other things, instruments and appliances used in medical and surgical sciences and their parts and accessories. According to the submitted information, the cables at issue are used in a pain management system and merely connect the trial device, which generates pain-masking electrical impulses, with leads implanted under the skin that deliver the impulses to the spinal cord. The cables neither generate nor deliver the electrical impulse therapy and therefore, by themselves, do not rise to the level of a medical or surgical “instrument” or “appliance”. As such, the cables cannot be classified as either instruments or appliances of heading 9018. To the contrary, based on their role, we find that they are parts without which instruments or appliances of heading 9018, HTSUS, could not function. United States v. Willoughby Camera Stores, 21 C.C.P.A. 322, 324 (1933). The cables, therefore, must be classified as parts, which are provided for under heading 9018, HTSUS.
However, Note 2(a) to Chapter 90 directs, in relevant part, that parts and accessories of Chapter 90 which are goods of Chapter 85 are in all cases to be classified in their respective headings. Heading 8544, HTSUS, provides for, among other things, insulated wire, cable and other insulated electric conductors, whether or not fitted with connectors. The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the HTSUS. While not 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. EN 85.44 explains that the goods of heading 8544, HTSUS, are made up of (A) a conductor, (B) one or more coverings of insulating material, (C) in certain cases, a metal sheath, and (D) sometimes a metal armouring. CBP has previously found that the main function of articles of heading 8544, HTSUS, is the conduction of electricity. See, for e.g., HQ W967801, dated January 18, 2007. Because the subject merchandise is made up of conductors (i.e., wire) and one or more coverings of insulating material, we find that they are both goods of Chapter 85, specifically heading 8544, HTSUS. Furthermore, they are not excluded from classification in this heading by Note 1(m) to Section XVI.
You argue that subheading 8544.41.8000 (now, 8544.42.9000), HTSUSA, does not describe the product in question because it is not an “other electric conductor”. Generally, an electrical conductor is any material or device that conducts electricity. Because the cables at issue conduct electricity, are fitted with connectors, and are not more specifically provided for elsewhere in this heading, we find that they are properly classified in subheading 8544.52.9000, HTSUSA (2008).
In addition, we find that because the extension cable and cable assembly are goods of heading 8544, they are precluded from classification in heading 8543, HTSUS, by the terms of that heading. As classification is determined by application of GRI 1, we cannot consider your alternative arguments under
GRI 3.
HOLDING:
By application of GRI 1 and Legal Note 2(a) to Chapter 90, we find that the OR extension cable and OR cable assembly are provided for in heading 8544, HTSUS. They are specifically provided for subheading 8544.42.9000, which provides for, in relevant part: “Insulated (including enameled or anodized) wire, cable (including coaxial cable) and other insulated electric conductors, whether or not fitted with connectors …: Other electric conductors, for a voltage not exceeding 1,000 V: Fitted with connectors: Other: Other.”
EFFECT ON OTHER RULINGS:
NY N004130 is hereby affirmed.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division