CLA-2 RR:CTF:TCM 967779 AML
TARIFF Nos.: 8544.20.0000; 8544.41.8000; 8544.49.8000
Area Port Director
U.S. Customs and Border Protection
8337 NE Alderwood Road
Portland, OR 97220
RE: Internal Advice 05/021; Cable Assemblies
Dear Port Director:
The following is our decision regarding your memorandum to this office, dated June 16, 2005, forwarding Internal Advice 05/021, which was initiated by counsel on behalf of Precision Interconnect (“PI”) via letter dated May 23, 2005, and seeks classification of five types of cable assemblies (categorically represented by part numbers 500241708, 650270002, SL3A1303, 500254403 and 500254206) pursuant to the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”). Samples and technical specification sheets were provided for our consideration. Also considered was supplemental technical information provided by counsel on March 7, 2003 and March 20, 2006.
FACTS:
The internal advice requester contends, with regard to entry number xxx-xxxx663-8, dated July 1, 2004, and in regard to PI’s line of cable products generally, that U.S. Customs and Border Protection (“CBP”) has misconstrued the meaning of the term “coaxial cable,” a term that is not defined in the tariff but has been previously defined in several Headquarters Rulings Letters (“HQ”), set forth below. These contentions are made in response to tariff classifications made by a CBP Import Specialist as a result of a Focused Assessment Audit conducted by a CBP Regulatory Audit team in February 2005. The Import Specialist determined that the articles at issue are “coaxial cables” classifiable under subheading 8544.20, HTSUS, set forth below. The internal advice requester contends that the cable assemblies are classifiable under subheading 8544.41, HTSUS, set forth below.
We paraphrase and quote the internal advice requester’s description of the cable assemblies at issue as follows:
The subject merchandise consists of various cables used in PI’s patient monitoring cable assemblies. These cables are designed to monitor minute changes in the human body, detecting voltages in the millivolt or even microvolt range. The cables vary in shape and size, but they all perform the same basic function. The cables consist of various numbers of individual conductors, bundled together in different combinations, each wrapped in appropriate insulating sheaths.
The internal advice requester continues that it has identified five representative samples, which because of their component materials and configurations, are classifiable under subheading 8544.41, HTSUS, which provides for, inter alia, other electric conductors, for a voltage not exceeding 80 V, fitted with connectors, rather than 8544.20, HTSUS, which provides for coaxial cables and other coaxial electric connectors.
The internal advice requester describes the five representative cable assemblies as follows:
Item 1 – Part #500241708 is described as a composite cable consisting of multiple single conductors, arranged in pairs and triples, some of which are shielded as pairs or triples, bundled together for the cable break-out harnessing arrangement. The bundles are cabled together and bound by a fluoropolymer tape, all of which is surrounded by a wire braided shield, which is surrounded by an extruded PVC jacket. The finished cable operates at a voltage of less than one volt.
Item 2 – Part # 650270002 consists of four unshielded single conductors (tinned copper wires, each insulated with PVC), cabled together and bound with Mylar or equivalent tape, all of which is surrounded by a braided shield, which is then surrounded by an extruded PVC jacket. The finished cable operates at a voltage of less than one volt.
Item 3 – Part #SL3A1303 is nothing more than a central conductor made of stranded tinned copper wire surrounded by an extruded insulating layer of PVC. The cable consists of a single conductor. The finished cable operates at a voltage of less than one volt.
Item 4 – Part #500254403 consists of a shielded triple conductor (i.e., three unshielded single conductors, cabled together, wrapped by a spiral wound wire and surrounded by an extruded PVC jacket) laid and bonded side-by-side with two more identical shielded triple conductors to make a 3-wide ribbon of jacketed shielded strips. The finished cable operates at a voltage of less than one volt.
Item 5 – Part# 500254206 is a composite cable consisting of multiple single conductors, arranged in pairs and triples, some of which are shielded as pairs or triples, bundled together as appropriate for a cable break-out harnessing arrangement. The bundles are cabled together and bound by a fluoropolymer tape, all of which is surrounded by a wire braided shield, which is surrounded by an extruded PVC jacket. The finished cable operates at a voltage of less than one volt.
The internal advice requester contends with regard to each of the five representative cable assemblies that none of the samples meets the “industry and commercial definition” of “coaxial.” The requester further contends that the “multiple conductors in this cable do not share a common axis” and that the “cable is simply a collection of individual conductors wrapped together inside a common sheath; they are not concentric.” The requester concludes that the articles are classifiable under subheading 8544.41, HTSUS.
Further, the internal advice requester contends that we should be swayed by its reliance upon a ruling concerning the classification of substantially identical merchandise issued to its “sister” company: HQ 952350, dated October 8, 1992.
Finally, via its supplemental submission dated supplemental submission dated March 20, 2006, the internal advice requester provided additional and clarifying information concerning the role or function of the braided sheaths in Items 1 and 5 above. The requester states that the “primary purpose of the braided material in PI cable Items 1 and 5 is to provide shielding to protect the cables from electromagnetic interference (“EMI”) and radio frequency interference (“RFI”) from electrical signals traveling on components contained in the braided shield.” In addition to the shielding function, the braided sheaths also provide structural and protective support to the cables. The braided sheaths do not conduct electrical signals in these items.
ISSUE:
Whether the cable assemblies are “coaxial cables” classifiable under subheading 8544.20, HTSUS, which provides for, among other things, coaxial cable, or under subheading 8544.41, HTSUS, which provides for, among other things, other electric conductors, for a voltage not exceeding 80 V, fitted with connectors, other?
LAW and ANALYSIS:
Prefatorily, we note that the internal advice requester’s reliance upon HQ 952350 is misplaced. Section 177.9(c), Customs Regulations (19 CFR 177.9(c)), specifically provides that persons other than the person to whom the ruling letter was addressed should not rely on that ruling, viz. “no other person should rely on the ruling letter or assume that the principles of that ruling will be applied in connection with any other transaction other than the one described in the ruling letter.”
Classification of imported merchandise is accomplished pursuant to the Harmonized Tariff Schedule of the United States (“HTSUS”). Classification under the HTSUS is guided by the General Rules of Interpretation of the Harmonized System (“GRIs”). GRI 1, HTSUS, states in part that “for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes,” and, provided the headings or notes do not otherwise require, according to the remaining GRIs taken in order. GRI 6 provides that for legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable.
The HTSUS provisions under consideration are as follows:
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 80 V:
8544.41 Fitted with connectors:
8544.41.80 Other.
8544.49 Other:
8544.49.80 Other.
The Harmonized Commodity Description and Coding System Explanatory
Notes (“ENs”) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. CBP believes the ENs should always be consulted. See T.D. 89-80, published in the Federal Register on August 23, 1989 (54 FR 35127, 35128).
Note 1 to Section XVI (in which Chapter 85 is located in the tariff) provide in pertinent part that Section XVI does not cover “(m) Articles of Chapter 90.” Similarly, Note 2 to Chapter 90 provides, in pertinent part, as follows:
2. 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 8485, 8548 or 9033) are in all cases to be classified in their respective headings;
(b) Other parts and accessories, if suitable for use solely or principally with a particular kind of machine, instrument or apparatus, or with a number of machines, instruments or apparatus of the same heading (including a machine, instrument or apparatus of heading 9010, 9013 or 9031) are to be classified with the machines, instruments or apparatus of that kind[.]
An article is to be classified according to its condition as imported. See XTC Products, Inc. v. United States, 771 F. Supp. 401, 405 (1991). See also United States v. Citroen, 223 U.S. 407 (1911). The articles at issue are imported separately from any other article. We conclude therefore, in accordance with Note 2(a) to Chapter 90, that the articles, cable assemblies equipped with various connectors for use with goods of Chapter 90, imported separately from the goods of Chapter 90, are prima facie classifiable under heading 8544, HTSUS.
The General Explanatory Notes to Chapter 85 provide, in pertinent part, that Chapter 85 covers “certain articles and materials which are used in electrical apparatus and equipment because of their conducting or insulating properties, such as insulated electric wire and assemblies thereof (heading 85.44)”.
The ENs to heading 8544, HTSUS, provide, in pertinent part, as follows:
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 [bold emphasis in original].
Non-metal conductors are also covered by this heading.
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:
(i) Single or multiple strand insulated wire.
(ii) Two or more such insulated wires twisted together.
(iii) Two or more such insulated wires assembled together in
a common insulating sheath.
The heading covers, inter alia:
* * *
(3) Telecommunications wires and cables (including submarine cables and data transmission wires and cables) are generally made up of a pair, a quad or a cable core, the whole usually covered with a sheath. A pair or a quad consists of two or four insulated wires, respectively (each wire is made up of a single copper conductor insulated with a coloured material of plastics having a thickness not exceeding 0.5 mm), twisted together. A cable core consists of a single pair or a quad or multiple stranded pairs or quads.
* * *
It [heading 8544] also includes insulated strip generally used in large electrical machinery or control equipment.
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.
The term “coaxial” is not defined in either the HTSUS or the ENs. In the absence of a contrary legislative intent, tariff terms that are not defined in an HTSUS section or chapter note, or clearly described in an EN, are construed in accordance with their common and commercial meanings, which are presumed to be the same. Nippon Kogasku (USA) Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982); Nylos Trading Company v. United States, 37 CCPA 71, 73, C.A.D. 423 (1949). Dictionaries, scientific authorities and other reliable lexicographic sources are often consulted; and, where the term under consideration is technical in nature, appropriate technical sources of information should be consulted. See Brookside Veneers, Ltd. v. United States, 6 Fed. Cir. (T) 121, 125, 847 F.2d 786 (1988); C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982).
CBP has previously examined lexographic and scientific definitions of the term “coaxial” in several rulings: HQ 964018, dated June 7, 2000; HQ 961830, dated October 2, 1998 and HQ 088496, dated April 12, 1991. In HQ 964018 we considered the following definitions of the term “coaxial cable”:
The McGraw-Hill Encyclopedia of Science and Technology (1992) defines coaxial cable as:
An electrical transmission line comprising an inner, central conductor surrounded by a tubular outer conductor. The two conductors are separated by an electrically insulating medium which supports the inner conductor and keeps it concentric with the outer conductor.
The IBM Dictionary of Computing (10th ed., 1993) defines coaxial cable as:
A cable consisting of one conductor, usually a small copper tube or wire, within and insulated from another conductor of larger diameter, usually copper tubing or copper braid.
The Microsoft Press Computer Dictionary (3rd ed., 1997) defines coaxial cable as:
A two-conductor cable consisting of a center wire inside a grounded cylindrical shield, typically made of braided wire, that is insulated from the center wire. HQ 964018 at 3.
In HQ 088496 dated April 12, 1991, we held certain “instant sensor” cable to be coaxial cable “since it consists of a solid copper center (conductor), surrounded by polyethylene (insulating medium), which, in turn, is surrounded by copper braid (outside conductor), and is used for sending or receiving RF impulses.” HQ 964018 at 3.
In HQ 961830, in classifying a “wiring harness” for use in “ultrasonic scanning devices for medical use,” we used the following analysis in determining that the articles were classified as “coaxial cable”:
Goods of heading 8544 may be in the form of single or multiple strand insulated wire or two or more insulated wires assembled together in a common insulating sheath. Such goods are made up of a single or multiple-strand conductor, one or more coverings of insulating material, and in certain cases a metal sheath (e.g., lead, brass, aluminum or steel) which serves, among other things, as a supplementary conductor in certain co-axial cables. The cable, designated 171-0614-00/13155, conforms to this description. Coaxial security system sensor cables of substantially similar construction were held to be classifiable as coaxial cable in subheading 8544.20.00, HTSUS. See HQ 088496, dated April 12, 1991, and lexicographic authorities cited. HQ 961830 at 4.
In HQ 088496, we considered the following definitions of the term “coaxial cable”:
Webster's New World Dictionary, Third College Edition,
(1988), defines coaxial as: 3 "designating a high-frequency
transmission line or cable in which a solid or stranded central
conductor is surrounded by an insulating medium which, in turn,
is surrounded by a solid or braided outside conductor in the form
of a cylindrical shell: it is used for sending telephone,
telegraph, television, etc. impulses."
* * *
The McGraw-Hill Encyclopedia of Science & Technology, Vol.
4, (1987), states that: "Coaxial units are designed for different mechanical behavior depending upon the application." HQ 088496 at 3.
From the above cited definitions, the basic definition of “coaxial cable or other coaxial conductors” for purposes of this internal advice decision is:
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.
A reasonable interpretation of the term “other coaxial electric conductors” is guided by the canon of construction ejusdem generis. The Court of International Trade (“CIT”) has stated that the canon of construction ejusdem generis, which means literally, of the same class or kind, teaches that “where particular words of description are followed by general terms, the latter will be regarded as referring to things of a like class with those particularly described.” Nissho Iwai American Corp. v. United States (Nissho), 10 CIT 154, 156 (1986). The CIT further stated that “[a]s applicable to customs classification cases, ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine in order to be classified under the general terms.” Nissho, p. 157. Thus we conclude that “other coaxial electric conductors” in subheading 8544.20, HTSUS, refer to goods that contain coaxial connectors, although not necessarily in the conventional configuration set forth above.
The information provided establishes that the representative articles at issue are cable assemblies comprised of multiple conductors variously bundled and insulated. From the samples and technical information provided, as well as by application of the criteria and general definition set forth above, we make the following conclusions regarding classification of the five parts at issue as follows:
Item 1 – Part #500241708 (described above as a composite cable consisting of multiple single conductors, arranged in pairs and triples, some of which are shielded as pairs or triples, bundled together for the cable break-out harnessing arrangement) is not, based upon the definition set forth above, coaxial. The braided sheath does not conduct electrical signals, but rather fulfills structural and shielding roles in the finished assembly. According to the technical information provided has a capacity of less than 1 volt. While the sample provided has no connectors, the technical information describes the article as having connectors upon importation. If imported with connectors, the article is classified under subheading 8544.41, HTSUS; if imported without connectors it is classified under subheading 8544.49, HTSUS.
Item 2 – Part # 650270002 is comprised of a tubular electric conductor with a shield inside it and other electric conductors wrapped in Mylar inside the shield. This configuration meets the definition of coaxial set forth above. This part is classified under subheading 8544.20, HTSUS.
Item 3 – Part #SL3A1303 is comprised of a central conductor made of stranded tinned copper wire surrounded by an extruded insulating layer of PVC and operates at a voltage of less than one volt. The cable consists of a single conductor and cannot be considered to be coaxial. If imported with connectors, the article is classified under subheading 8544.41, HTSUS; if imported without connectors it is classified under subheading 8544.49, HTSUS.
Item 4 – Part #500254403 is comprised of a shielded triple conductor (i.e., three unshielded single conductors, cabled together, wrapped by a spiral wound wire and surrounded by an extruded PVC jacket) laid and bonded side-by-side with two more identical shielded triple conductors to make a “3-wide” (see the IA requester’s submission) ribbon of jacketed, shielded strips. The finished cable operates at a voltage of less than one volt. Despite the “ribbon” configuration of the sample, the specification sheet refers to the article as having “cable coax” as one of its components. This configuration meets the definition of coaxial and other coaxial electric conductors set forth above. This part is classified under subheading 8544.20, HTSUS.
Item 5 – Part# 500254206 is comprised of multiple single conductors, arranged in pairs and triples, some of which are shielded as pairs or triples, bundled together as appropriate for a cable break-out harnessing arrangement. The finished cable operates at a voltage of less than one volt. The part is not coaxial and according to the technical information provided has a 30-volt capacity. While the sample provided has no connectors, the technical information describes the article as having connectors upon importation. If imported with connectors, the article is classified under subheading 8544.41, HTSUS; if imported without connectors it is classified under subheading 8544.49, HTSUS.
HOLDING:
The cable assemblies are classified as follows:
Item 2 – Part # 650270002 and Item 4 – Part #500254403, both which contain coaxial cable, are classified under subheading 8544.20.0000, HTSUSA, which provides for: “Insulated (including enameled or anodized) wire, cable (including coaxial cable) and other insulated electric conductors, whether or not fitted with connectors; . . .: Coaxial cable and other coaxial electric conductors.”
The 2004 general, column 1 duty rate is 5.3% ad valorem.
Item 1 – Part #500241708, Item 3 – Part #SL3A1303 and Item 5 – Part# 500254206, if imported with connectors, the articles are classified under subheading 8544.41.8000, HTSUSA, which provides for “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 80 V: Fitted with connectors: Other”; and, if imported without connectors they are classified under subheading 8544.49.8000, HTSUSA. The 2004 general, column 1 duty rate for subheading 8544.41.8000, HTSUSA is 2.6% ad valorem. The 2004 general, column 1 duty rate for subheading 8544.49.8000, HTSUSA is 3.5% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the Internet at www.usitc.gov.
You are directed to mail this decision to the internal advice applicant, no later than 60 days from the date of this letter. On that date the Office of Regulations and Rulings will make the decision available to Customs personnel and to the public on the Customs Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other public methods of distribution.
Sincerely,
Myles B. Harmon, Director
Commercial & Trade Facilitation Division