HQ 954304: Modification of HQ 556178; Pacing Leads; Pacemakers; Explanatory Note 85.44; Chapter 90, Note 2; 9021.90.40; 9817.00.96

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

               

                            HQ 954304
                          June 28, 1993


CLA-2 CO:R:C:M 954304 DWS

CATEGORY: Classification

TARIFF NO.: 8544.41.00

District Director
U.S. Customs Service
300 Second Avenue, South
Great Falls, MT 59401

RE: Modification of HQ 556178; Pacing Leads; Pacemakers;         
     Explanatory Note 85.44; Chapter 90, Note 2; 9021.90.40;     
      9817.00.96 

Dear District Director:

     In a letter dated December 11, 1991 (HQ 556178), we responded
to your memorandum of May 28, 1991 (CLA-1 DEN-FM), relating to a
request for internal advice initiated by McDermott, Will & Emery,
on behalf of Telectronics Pacing Systems, Inc., concerning the
classification of pacing leads under the Harmonized Tariff Schedule
of the United States (HTSUS).  We have been asked to reconsider the
holding in HQ 556178.

FACTS:

     The merchandise consists of pacing leads, principally used
with pacemakers.  They are insulated conductors with special
connectors at their tips for venous insertion.  The primary
function of the leads is to transmit a pacing electrical stimulus
from pacemakers, both pulse generating and defibrillating, to the
heart.

     In HQ 556178, the pacing leads were held to be classifiable
under subheading 9021.90.40, HTSUS, as parts for pacemakers. 
Because the pacing leads were classified as parts, they were not
eligible for duty free treatment under subheading 9817.00.96,
HTSUS, as articles specially designed or adapted for the use or
benefit of physically handicapped persons.  

     The subheadings under consideration are as follows:

     9021.90.40: [p]arts and accessories for hearing aids and for
                 pacemakers for stimulating heart muscles.

     The general, column one rate of duty is 4.2 percent ad
     valorem.

     8544.41.00: [i]nsulated (including enameled or anodized) wire,
                 cable (including coaxial cable) and other       
                  insulated conductors, whether or not fitted with
                 connectors . . . : [o]ther electric conductors,
                 for a voltage not exceeding 80 V: [f]itted with
                 connectors.

     The general, column one rate of duty is 5.3 percent ad
     valorem.

     9817.00.96: [a]rticles specially designed or adapted for the
                 use or benefit of the blind or other physically
                 or mentally handicapped persons: [o]ther.

     Goods classifiable under this provision receive duty free
     treatment.
     
ISSUE:

     Whether the pacing leads are classifiable under subheading
9021.90.40, HTSUS, as parts for pacemakers, or under subheading
8544.41.00, HTSUS, as other electric conductors, fitted with
connectors?

     Whether the pacing leads are eligible for duty free treatment
under subheading 9817.00.96, HTSUS, as articles specially designed
or adapted for the use or benefit of physically handicapped
persons?

LAW AND ANALYSIS:

     Classification of merchandise under the HTSUS is in accordance
with the General Rules of Interpretation (GRI's), taken in order.
GRI 1 provides that classification is determined according to the
terms of the headings and any relative section or chapter notes.

     In understanding the language of the HTSUS, the Harmonized
Commodity Description and Coding System Explanatory Notes may be
utilized.  The Explanatory Notes, although not dispositive, are to
be used to determine the proper interpretation of the HTSUS.  54
Fed. Reg. 35127, 35128 (August 23, 1989).  In part, Explanatory
Note 85.44 (pp. 1403 - 1404) 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. . .  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 pacing leads consist of insulated wire, fitted with
connectors, and they are used as conductors in electrical
apparatus.  It is our position that the pacing leads are eo nomine
described under subheading 8544.41.00, HTSUS, as other electric
conductors, fitted with connectors.  However, as the leads are
parts principally used with pacemakers, they are also described
under subheading 9021.90.40, HTSUS.

     Chapter 90, note 2, HTSUS, states that:

     [s]ubject 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;

     (c) All other parts and accessories are to be classified in 
          heading 9033. 

     We find that, because the pacing leads are goods eo nomine
included in a heading of chapter 85, HTSUS, under chapter 90, note
2(a), HTSUS, they are classifiable under subheading 8544.41.00,
HTSUS, as other electric conductors, fitted with connectors. 
Because the pacing leads are classifiable according to note 2(a),
HTSUS, note 2(b), HTSUS is not applicable.

     We agree with the holding in HQ 556178 that the pacing leads,
which are parts for pacemakers, are not eligible for duty free
treatment under subheading 9817.00.96, HTSUS, as articles specially
designed or adapted for the use or benefit of physically
handicapped persons.  Subheading 9817.00.96, HTSUS, applies to
"articles" and not to "parts".

HOLDING:

     The pacing leads are classifiable under subheading 8544.41.00,
HTSUS, as other electric conductors, fitted with connectors.

     The pacing leads are not eligible for duty free treatment
under subheading 9817.00.96, HTSUS, as articles specially designed
or adapted for the use or benefit of physically handicapped
persons.

EFFECT ON OTHER RULINGS:

     HQ 556178 is modified, pursuant to section 177.9(d)(1),
Customs Regulations [19 CFR 177.9(d)(1)], to reflect the reasoning
in this ruling.

                           Sincerely,



                           John Durant, Director