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HQ 952364


November 3, 1992

CLA-2 CO:R:C:M 952364 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 8544.41.00

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?

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