CLA-2 OT:RR:CTF:TCM H154035 AMM
Port Director
U.S. Customs and Border Protection
Cleveland Service Port
6747 Engle Road
Middleburg Heights, OH 44130
Attn: Luke Lepage
RE: Tariff classification of Cap Sensors; Protest No. 4196-10-100699
Dear Port Director:
This letter is in reply to protest, and application for further review (AFR), number 4196-10-100699, dated November 2, 2010, filed on behalf of Micro Systems Engineering, Inc. (MSEI), against U.S. Customs and Border Protection’s (CBP) reclassification and subsequent liquidation of one entry for Cap Sensors.
FACTS:
The product is described in the protest as a “Cap Sensor for use with pacemakers.” In the Appendix attached to MSEI’s Memorandum in Support of Protest and AFR, dated November 2, 2010, the product is described as a “Capacitive Acceleration Sensor Land Grid Array.”
In their Memorandum, MSEI states the following:
MSEI is a subsidiary of Biotronik, which manufactures and markets medical devices, including different types of pacemakers. The Cap Sensors in issue are component assemblies used in Biotronik’s pacemakers[.] The Cap Sensors are dedicated solely and exclusively for use in pacemakers. The Cap Sensors are electro-mechanical devices which incorporate a tiny cantilever beam. The beam deflects in response to inertial forces whenever the device is accelerated (i.e., whenever there is a change in direction or speed). The cantilever beam is a mechanical assembly … made of silicon or some other similar material which deflects according to a patient’s movement. When the cantilever moves or deflects due to the patient’s movement (or lack therof), it causes changes in capacitance or the ability of the capacitor to store a particular charge[.] The pacemaker control circuit detects the mechanical deflection of the cantilever beam by measuring the resultant changes in capacitance. The pacemaker control circuit, not the Cap Sensor, then adjusts the pace rate based on the indirect measurement of a patient’s motion. For example, if the patient is running, the pace will be increased while, if the patient is resting, the pace will be decreased.
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[T]he function of the Cap Sensor is to send signals to the pacemaker control circuit concerning the capacitance of the sensor.
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The Appendix to the MSEI’s Memorandum in Support of Protest and AFR, identifies the instant merchandise as a “Capacitive Acceleration Sensor Land Grid Array.” This document states that “[b]oth the sensor element and the packaged device are custom components, as they are designed specifically to meet MSEI product needs.” Furthermore, MSEI has provided certain drawings detailing the placement of the Cap Sensor inside the pacemaker assembly, and copies of purchasing agreements between MSEI and its parent company, Biotronik SE & Co. of Berlin (Biotronik).
The protest pertains to one entry for Cap Sensors. The entry took place on October 27, 2009. The Cap Sensors were entered under heading 8534, HTSUS, as printed circuits. A notice of proposed rate advance was issued on March 19, 2010, proposing to reclassify the Cap Sensors in heading 8536, HTSUS, as other apparatus for protecting electrical circuits. The Cap Sensors were liquidated under heading 8536, HTSUS, on May 7, 2010.
ISSUE:
What is the correct classification of the Cap Sensor under the HTSUS?
LAW AND ANALYSIS:
Initially we note that the matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification and the rate and amount of duties chargeable. The protest was timely filed on November 2, 2010, within 180 days of liquidation, pursuant to 19 U.S.C. §1514(c)(3).
Further review of Protest No. 4196-10-100699 was properly accorded to MSEI pursuant to 19 C.F.R. §174.24. Specifically, in accordance with Section 174.24(b), the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts.
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 GRI may then be applied.
The 2012 HTSUS provisions at issue are:
8532 Electrical capacitors, fixed, variable or adjustable (pre-set); parts thereof:
8532.30.00 Variable or adjustable (pre-set) capacitors
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8534.00.00 Printed circuits
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8543 Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof:
8543.70 Other machines and apparatus:
8543.70.40 Electric synchros and transducers; flight data recorders; defrosters and demisters with electric resistors for aircraft
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9021 Orthopedic appliances, including crutches, surgical belts and trusses; splints and other fracture appliances; artificial parts of the body; hearing aids and other appliances which are worn or carried, or implanted in the body, to compensate for a defect or disability; parts and accessories thereof:
9021.90 Other:
9021.90.40 Parts and accessories for hearing aids and for pacemakers for stimulating heart muscles
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9031 Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter; profile projectors; parts and accessories thereof:
9031.80 Other instruments, appliances and machines:
9031.80.80 Other
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Articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons; parts and accessories (except parts and accessories of braces and artificial limb prosthetics) that are specially designed or adapted for use in the foregoing articles:
9817.00.96 Other
Note 1 to Section XVI (which covers Chapter 85), HTSUS, states, in pertinent part: “This section does not cover: … (m) Articles of chapter 90; …”.
Note 2(a) to Chapter 90, HTSUS, states, in pertinent 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:
(a) 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 8487, 8548 or 9033) are in all cases to be classified in their respective headings;
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U.S. Note 1 to Chapter 98, HTSUS, states, “The provisions of this chapter are not subject to the rule of relative specificity in general rule of interpretation 3(a). Any article which is described in any provision in this chapter is classifiable in said provision if the conditions and requirements thereof and of any applicable regulations are met.”
U. S. Note 4 to Subchapter XVII of Chapter 98 (which covers Heading 9817), HTSUS, states, in pertinent part:
(a) For purposes of subheading[] … 9817.00.96, the term "blind or other physically or mentally handicapped persons" includes any person suffering from a permanent or chronic physical or mental impairment which substantially limits one or more major life activities, such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, or working.
(b) Subheadings 9817.00.92, 9817.00.94 and 9817.00.96 do not cover --
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(iii) therapeutic and diagnostic articles; …
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MSEI entered the instant Cap Sensors under heading 8534, HTSUS, as “printed circuits”. MSEI now argues that the instant products are properly classified under heading 8532, HTSUS, as “electrical capacitors”. In the alternative, MSEI argues that instant products are properly classified under heading 9021, HTSUS, as “other appliances which are worn or carried, or implanted in the body, to compensate for a defect or disability; parts and accessories thereof”. Finally, MSEI argues that, regardless of the primary classification of the instant Cap Sensors, they are eligible for secondary classification 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; parts and accessories … that are specially designed or adapted for use in the foregoing articles”.
I. Primary Classification
If the instant products are properly classified under heading 9031, HTSUS, then they precluded from classification in any heading in Section XVI, HTSUS, including headings 8532, 8534, and 8543, HTSUS. See Note 1(m) to Section XVI, HTSUS. Furthermore, classification under heading 9031, HTSUS, as a “measuring or checking instrument,” would preclude the instant Cap Sensors from being classified under heading 9021, as parts of an appliance implanted in the body to compensate for a defect or disability. See Note 2(a) to Chapter 90, HTSUS. Therefore, it is proper to first consider whether the instant products are properly classified under heading 9031, HTSUS.
Heading 9031, HTSUS, provides for “Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter”. The terms “measure” and “instrument” are not defined in the HTSUS or in the ENs. CBP has previously defined the term “measure” as: “[t]o ascertain the quantity, mass, extent, or degree of in terms of a standard unit or fixed amount …; measure the dimensions of; take the measurements of …; to compute the size of ... from dimensional measurements.” See Headquarters Ruling Letter (HQ) H009364, dated November 23, 2009; HQ 965639, dated September 12, 2002; and HQ 954682, dated July 14, 1994. The word “instrument” is defined as:
2. a. A material thing designed or used for the accomplishment of some mechanical or other physical effect; a mechanical contrivance (usually one that is portable, of simple construction, and wielded or operated by the hand); a tool, implement, weapon. Also applied to devices whose primary function is to respond to a physical quantity or phenomenon, esp. by registering or measuring it, rather than to accomplish an effect, and which may function with little direct human intervention and be of complicated design and construction.
Oxford English Dictionary, at (last checked August 31, 2011).
MSEI describes the function of the instant merchandise in the following manner:
The Cap Sensors are electro-mechanical devices which incorporate a tiny cantilever beam. The beam deflects in response to inertial forces whenever the device is accelerated (i.e., whenever there is a change in direction or speed).
* * *
When the cantilever moves or deflects due to the patient’s movement (or lack thereof), it causes changes in capacitance or the ability of the capacitor to store a particular charge.
* * *
The pacemaker control circuit detects the mechanical deflection of the cantilever beam by measuring the resultant changes in capacitance.
* * *
See Memorandum in Support of Protest and AFR, pp. 2-3. Furthermore, MSEI states that “[T]he function of the Cap Sensor is to send signals to the pacemaker control circuit concerning the capacitance of the sensor.” Id. at p. 7.
The Cap Sensor is designed to detect the acceleration of a patient fitted with a pacemaker. When the patient changes speed, the cantilever beam reacts to that change. The sensor component detects the changes in capacitance of the two capacitors caused by the motion of the cantilever beam. This information is then transmitted from the Cap Sensor to a separate component, the pacemaker control circuit. The instant Cap Sensors are electromechanical devices whose primary function is to respond to the physical phenomenon of a change in motion by registering it through a change in capacitance caused by the motion of the cantilever beam. Therefore, the instant products are “instruments” within the meaning of the definition given above.
Though the Cap Sensor itself does not measure or inspect this data, it is used in the process of measuring or checking. In United States v. Corning Glass Works, 66 CCPA 25, 27, 586 F.2d 822, 825 (1978), the Court stated that the provision for “checking instruments” clearly and unambiguously encompasses machines that carry out steps in a process for inspecting. Consequently, CBP has consistently held that equipment which is principally used in the process of measuring or checking is classifiable under that provision, even if it does not actually perform the measuring or checking operation itself. See e.g., HQ H009364; HQ 953382, dated April 15, 1993; and HQ 089391, dated February 6, 1992. In order to adjust the rate of the pacemaker, the pacemaker circuit must know whether the wearer is accelerating, and at what rate. The only functions of the Cap Sensor are to detect the rate of the wearer’s acceleration, and transmit that information to the control circuit. Therefore, the instant Cap Sensors are principally used in the process of measuring a pacemaker wearer’s acceleration. They are “measuring instruments” within the meaning of heading 9031, HTSUS.
CBP has consistently classified accelerometers under heading 9031, HTSUS. An “accelerometer” is “[a]n instrument for ascertaining the acceleration of a moving body or for measuring mechanical vibrations.” Oxford English Dictionary, at (last checked August 31, 2011). Furthermore, the McGraw-Hill Concise Encyclopedia of Science and Technology, 6th Ed. (2009), defines “accelerometer” as “[a] mechanical or electromechanical instrument that measures acceleration.”
In New York Ruling Letter (NY) F82413, dated March 3, 2000, CBP considered an electromechanical device designed to replace mercury switches used in automobiles. CBP described the article in the following manner:
[T]he cylinder contains a movable piece in a micromachine which presses against a plate when the device is accelerated. This pressure results in a local change in capacitance, which, via the other electronic elements, results in an increase in voltage, directly proportional to the acceleration, from the device’s normal output of 2.5 volts. One of the three pins will be connected to a ground, to a source of constant 5 volt dc current, and to a mini-computer which will read the varying output voltage as a measure of the acceleration experienced.
See NY F82413. As such, CBP found that the article was designed to measure acceleration, using capacitance as its primary electrical sensing mode, and classified it under heading 9031, HTSUS. See also NY 875894, dated July 28, 1992 (accelerometers classified under heading 9031, HTSUS).
The cap sensor fits the definitions of “accelerometer” provided above, in that it is an electromechanical instrument used in the process of measuring the acceleration of a patient. Furthermore, it is a “measuring instrument” within the scope of heading 9031, HTSUS, and it is not specified or included anywhere else in Chapter 90, HTSUS. Therefore, the Cap Sensor is properly classified under heading 9031, HTSUS. Specifically, it is classified under subheading 9031.80.80, HTSUS, which provides for “Measuring … instruments … not specified or included elsewhere in this chapter …: Other instruments, appliances and machines: Other”.
Because the Cap Sensor is properly classified under heading 9031, HTSUS, it is precluded from classification under headings 8532, 8534, and 8543, HTSUS, by application of Note 1(m) to Section XVI, HTSUS. Furthermore, the cap sensors are precluded from classification under heading 9021, HTSUS, by application of Note 2(a) to Chapter 90, HTSUS.
II. Secondary Classification
MSEI argues that, no matter the primary classification, the Cap Sensor is eligible for secondary classification under heading 9817, HTSUS, which provides, in pertinent part, for “Articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons; parts and accessories … that are specially designed or adapted for use in the foregoing articles”.
The Nairobi Protocol to the Agreement on the Importation of Educational, Scientific, and Cultural Materials Act of 1982, established the duty-free treatment for certain articles for the handicapped. Presidential Proclamation 5978 and Section 1121 of the Omnibus Trade and Competitiveness Act of 1988, provided for the implementation of the Nairobi Protocol into subheadings 9817.00.92, 9817.00.94, and 9817.00.96, HTSUS. These provisions specifically state that “[a]rticles 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.
CBP has previously found that “those individuals who are suffering from heart problems which mandate the use of pacemakers” are physically handicapped within the meaning of U.S. Note 4(a) to Subchapter XVII of Chapter 98, HTSUS. See HQ 556243, dated December 2, 1991.
U.S. Note 4(b)(iii) to Subchapter XVII of Chapter 98, HTSUS, excludes therapeutic and diagnostic articles from classification under subheading 9817.00.96, HTSUS. The Court of International Trade has defined “therapeutic” articles as those that are used to heal or cure the condition causing the handicap, as opposed to those articles which are designed to compensate for, or adapt to, the handicapped condition. Richards Medical Co. v. United States, 720 F.Supp. 998, 1000 (Ct. Int’l. Trade 1989), aff’d 910 F.2d 828 (Fed. Cir. 1990). CBP has previously found that pacemakers and components of pacemakers are not “therapeutic” articles, and are not excluded from classification under subheading 9817.00.96, HTSUS by operation of U.S. Note 4(b)(iii) to Subchapter XVII of Chapter 98, HTSUS. See HQ H556243 (pacemakers); NY N080121, dated November 5, 2009 (components of pacemakers).
The question then becomes whether the Cap Sensor is “specially designed or adapted” for a pacemaker within the meaning of the Nairobi Protocol. To determine whether a good is “specially designed or adapted,” CBP uses various factors on a case-by-case basis, as set forth in Treasury Decision (TD) 92-77 (26 Cust. Bull. 240 (1992)).
The primary factor to be considered concerns the physical properties of the article itself, i.e., whether the article is easily distinguishable, by properties of the design and the corresponding use specific to this unique design, from articles useful to non-handicapped individuals.
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Another factor established by Customs was the “probability of general public use.” This factor concerns whether any characteristics are present in an article that create a substantial probability of use by the chronically handicapped, whether the article is easily distinguishable from articles useful to the general public, and whether use of the article by the general public is so improbable that such use would be fugitive.
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Customs also considered other factors in determining whether an article is “specially designed or adapted” for the handicapped: (a) whether articles are imported by manufacturers or distributors recognized or proven to be involved in this class or kind of articles for the handicapped; (b) whether the articles are sold in specialty stores which serve handicapped individuals; and (c) whether the condition of the articles at the time of importation indicates that these articles are for the handicapped.
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Each of these factors must be weighed against other factors to determine whether an article is specially designed or adapted for the handicapped.
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See T.D. 92-77, 26 Cust. Bull. at 243-244. See also HQ 556449, dated May 5, 1992.
With respect to the physical properties of the articles, the instant Cap Sensors are electromechanical accelerometers. They are designed as components to several different types of MSEI’s pacemakers. MSEI has provided certain assembly drawings detailing the placement of the Cap Sensors inside the pacemaker structure, and cutaway drawings of the Cap Sensors themselves. They are specifically shaped and sized to fit within specific pacemakers, while still performing their intended function. In fact, the specification sheet for the Cap Sensors states that “[t]his document contains detailed specifications for a capacitive acceleration sensor land grid array (LGA). Both the sensor element and the packaged device are custom components, as they are designed specifically to meet MSEI product needs.”
With respect to the probability of general use of the articles, MSEI states that the Cap Sensors are custom components, dedicated solely and exclusively for use in Biotronik’s pacemakers. These components are sold directly from MSEI to Biotronik. It is possible to imagine a scenario in which a member of the general public could obtain and find some use for this article, but such a use would be considered fugitive.
With regard to the other factors, CBP notes that the Cap Sensors are imported by MSEI, and sold to their parent company Biotronik, who is a manufacturer of pacemakers. The instant Cap Sensors do not appear to be sold in stores, and their condition at the time of importation does not necessarily indicate that they are specifically for the handicapped.
On balance, it is CBP’s position that the various factors discussed above weigh in favor of a determination that the instant Cap Sensors are “specially designed or adapted” for a pacemaker within the meaning of the Nairobi Protocol, and that they are therefore properly classified under heading 9817, HTSUS, specifically under subheading 9817.00.96, HTSUS.
The Cap Sensor is properly classified under heading 9031, HTSUS, and under heading 9817, HTSUS. Normally, this would trigger an analysis of which heading provides the most specific description, in accordance with GRI 3(a). However, U.S. Note 1 to Chapter 98, HTSUS, states that the provisions of Chapter 98, HTSUS, are not subject to this rule. Therefore, the Cap Sensor remains classifiable in both headings.
HOLDING:
The Cap Sensor is properly classified under heading 9031, HTSUS, under subheading 9031.80.80, HTSUS, which provides for “Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter; profile projectors; parts and accessories thereof: Other instruments, appliances and machines: Other”. The general, column one rate of duty is 1.7% ad valorem.
In addition, the Cap Sensor is eligible for secondary classification under heading 9817, HTSUS, specifically under subheading 9817.00.96, HTSUS, which provides for “Articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons; parts and accessories (except parts and accessories of braces and artificial limb prosthetics) that are specially designed or adapted for use in the foregoing articles: Other”. The general, column one rate of duty is free.
You are instructed to GRANT the protest. Duty rates are provided for the internal advice applicant’s convenience 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.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to MSEI no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division