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HQ 958676




September 3, 1996

CLA-2 RR:TC:TE 958676 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.9025; 9817.00.9600

Port Director
U.S. Customs Service
6601 N.W. 25th Street, Room 116
Post Office Box 025280
Miami, Florida 33102-5280

RE: Internal Advice Request No. 13/96; Carrying Case for Pacemaker Programmer; Not GRI 5(a) Container; Not Set

Dear Sir:

This letter is in response to Internal Advice Request No. 13/96, initiated by a letter dated March 24, 1995, submitted by McDermott, Will & Emery, 1850 K Street, Northwest, Washington, D.C., 20006-2296, on behalf of TPL Cordis (Telectronics). The request concerns the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of protective carrying cases imported from China with (and possibly, without) the pacemaker programmers they are designed to carry. A sample carrying case has been submitted.

FACTS:

The sample is a carrying case or bag that measures approximately 20 inches in length by 14 inches in width by 4 inches in depth. The case's outer surface and linings are composed of man-made textile materials, and the inner lining is filled with foam material. The case is zippered on 3 sides and has 2 carry handles and a removable shoulder strap, all of woven textile materials. A large utility pocket on the front is imprinted with the words "Telectronics Pacing Systems," and is secured with a hook and loop closure. The bottom of the case has rubber bumpers at each corner. -2-

The case is said to be imported containing one model number 9602 cardiac pacemaker programmer, a personal computer-based programmer designed to program pacemakers or pulse generating devices used in the medical treatment of persons with abnormal heartbeats. The case's dimensions and features render it suitable to carry, store, and protect any similarly-sized electronic equipment (i.e., lap top computers, personal computers, radio receivers, electronic keyboards, etc.). 9602 Network Programmer literature, including the "Product Information Package" and the "Physician's Manual," indicate that the programmer (not currently available for sale) and case (separately available as an accessory - part no. 042-075) are imported in connection with a "controlled market release," intended to allow a select group of hospitals and physicians to evaluate the programmer before it is released commercially. In addition to the programmer, the case is designed to hold "all accessories and spare equipment," such as patient cables, electrodes, spare printer paper, AC adaptor, manuals, power cable, patient ECG adaptor, wand adaptor, and warranty card.

ISSUE:

Whether the protective carrying case is classifiable with the article it is designed to contain, either as a component of a set or composite good; or is separately classifiable as a case specially shaped or fitted to contain a specific article.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). 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 GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI.

The complete article cannot be classified by reference to GRI 1 because it consists of two individual components that are classifiable in two different headings, i.e., 4202 and 9817,

In pertinent part, GRI 2(b) states that:

The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.

GRI 3(a) directs that the headings are regarded as equally specific when each of the two separate headings refers to part only of the materials or items contained in composite goods or in a set put up for retail sale. Therefore, we look to GRI 3(b) which, in pertinent part, states that:
goods...which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

Explanatory Note VIII to GRI 3(b) provides the following guidance concerning the essential character determination:

The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

The pacemaker programmer and carrying case differ greatly in nature, bulk, weight, value, and role. The programmer organizes and arranges data used in implant able medical devices. The case serves to store, protect, and transport the programmer with which it is entered. In pertinent part, Explanatory Note IX to GRI 3(b) indicates that:

For purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts.

As stated in the FACTS section above, the carrying case is separately available as an accessory to the programmer. Thus the programmer and carrying case do not comprise a composite good. -4-

Explanatory Note X(b) to GRI 3(b) relates that:

For the purposes of this Rule, the term "goods put up in sets for retail sale" shall be taken to mean goods which:
consist of products or articles put up together to meet a particular need or carry out a specific activity....

As noted above, when the items are put up together, they meet or carry out at least two separate needs or specific activities, i.e., the programming of a medical device and the storage, protection, and transportation of the programmer. Thus, the goods do not comprise a set.

We next note that certain containers may be classified with the articles they are designed to hold, if the requirements of GRI 5(a) are met. In pertinent part, GRI 5(a) states that:

Camera cases, musical instrument cases, gun cases, drawing instrument cases, necklace cases and similar containers, specially shaped or fitted to contain a specific article or set of articles, suitable for long-term use and entered with the articles for which they are intended, shall be classified with such articles when of a kind normally sold therewith.

Although this carrying case is said to be imported with a programmer it is designed to contain but which is not currently available for sale, our information is that carrying cases of this kind are not normally sold with such electronic equipment. As in this instance, carrying cases are usually available separately as accessories. Therefore, GRI 5(a) does not operate to make the carrying case classifiable with the programmer. The two items are separately classifiable.

HOLDING:

When imported together, the pacemaker programmer and carrying case are separately classified as follows:

The Model No. 9602 Cardiac Pacemaker Programmer is properly classified in subheading 9817.00.9600, HTSUSA, the provision for "Articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons...: Other." The applicable duty rate is

The carrying case for the pacemaker programmer is properly classified in subheading 4202.92.9025, HTSUSA, textile category 670, the provision for "Trunks, suitcases, vanity cases...: Other: With outer surface of sheeting of plastic or of textile materials: Other: Other, With outer surface of textile materials: Other: Of man-made fibers." The applicable duty rate is 19.5 percent ad valorem.

The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service, which is available for inspection at your local Customs office.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories applicable to textile merchandise, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

This decision should be mailed by your office to the internal advice requester no later than 60 days from the date of this letter. After sixty days, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS, and to the public via the Diskette Subscription Service, Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director

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