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HQ 964614




August 21, 2001

CLA-2 RR:CR:TE 964614 JFS

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.9060, 9817.00.96

Leonard L. Rosenberg
Sandler, Travis & Rosenberg, P.A.
The Waterford
5200 Blue Lagoon Drive
Miami, FL 33126-2022

RE: Revocation of Headquarters Ruling Letter (HQ) 962581, dated February 23, 2000; Classification of a Carrying Case for a Diabetes Monitoring System; Nairobi Protocol; Heading 4202, HTSUSA; Binocular Cases, Camera Cases, Musical Instrument Cases and Similar Containers; Not Heading 9027, HTSUSA; Not Accessories of Instruments and Apparatus for Physical or Chemical Analysis

Dear Mr. Rosenberg:

On February 5, 1999, Customs received your request for a binding ruling on a carrying case for the Accu-Check Diabetes Monitoring System. In response, Customs issued two rulings. In HQ 561283, dated August 26, 1999, Customs ruled that the subject case was “specially designed or adapted for the handicapped” within the meaning of the Nairobi Protocol, Annex E, to the Florence Agreement, as codified in the Education, Scientific, and Cultural Materials Act of 1982, and was thus eligible for duty-free treatment under subheading 9817.00.96, of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). In HQ 962581, Customs classified the subject case under subheading 9027.90.54, HTSUSA, as “. . . accessories: Of electrical instruments and apparatus: Other: Of instruments and apparatus of subheading 9027.20, 9027.30, 9027.40, 9027.50 and 9027.80.”

This letter is to inform you that Customs has reconsidered HQ 962581. After review of the ruling, it has been determined that the classification of the case for the diabetes monitoring system in subheading 9027.90.54, HTSUSA, was incorrect. For the reasons that follow, this ruling revokes HQ 962581. However, Customs ruling in HQ 561283, concerning the eligibility of the carrying case for preferential tariff treatment under the Nairobi Protocol was correct and is not revoked or otherwise modified in this ruling.

Pursuant to section 625(c)(1) Tariff Act of 1930 (19 U.S.C. 1625(c)(1)) as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-82, 107 Stat. 2057, 2186), notice of the proposed revocation of HQ 962581 was published on July 11, 2001, in the Customs Bulletin, Volume 35, Number 28. You submitted one comment regarding two issues in response to the notice. The first issue addressed why Customs ruling in HQ 962581 was correct. The instant ruling fully addresses the basis for revoking HQ 962581, therefore no further analysis is necessary.

You also contend that when Customs issued HQ 962132, dated October 26, 2000, Customs “effectively revoked HQ 962581.” In HQ 962132, Customs acknowledged that the position it was taking was contrary to the position taken by Customs in HQ 962581. Customs further stated that it was in the process of reviewing all of the rulings concerning diabetes monitoring carrying cases to determine if they needed to be revoked. You assert that, in so doing, Customs revoked HQ 962581 without notice as required by 19 U.S.C. 1625 (c). This argument fails. HQ 962132 only concerned the items under consideration in that ruling. Only the instant ruling has the effect of revoking HQ 962581. Moreover, you have failed to demonstrate that your client suffered any harm as a result of HQ 962132.

FACTS:

The subject carrying case was described in both HQ 561283 and HQ 962581, as follows:

The article under consideration is described as a carrying case for a diabetes monitoring system. This system is designed to permit a diabetic patient to perform reliable blood glucose self-monitoring (i.e., ascertaining whether the patient's capillary whole blood glucose value is either too high or too low) as a necessary part of treatment. The system consists of a blood glucose monitor (with batteries), ten instant test strips, an adjustable lancet device with ten lancets, control solution, a self-test diary, a user's manual and reference guide which are all contained within a carrying case.

To perform the necessary test, the patient must place a test strip into the monitor and, after pricking a fingertip with the lancet device, apply a drop of blood to the center of the strip's test pad. The monitor automatically begins to measure the patient's blood glucose level as soon as it senses the drop of blood on the strip. After approximately twelve seconds, the test results are displayed on the monitor. A visual color check can then be made immediately following the test by comparing the reaction color on the test strip with the color chart on the test strip vial. This visual check can be used to confirm the value obtained by the monitor. Once a patient's blood glucose level is determined, he or she can then, if necessary, inject insulin.

The sample carrying case under consideration, measures approximately 4" x 6" x 1 1/2", and contains a zipper that extends along three sides of the pouch, permitting the pouch to lie flat when fully opened. Although the sample submitted is made of vinyl, we are informed that other materials (e.g., leather or textile) may be used for the outermost covering in future shipments. Regardless of the material used on the outside of the case, the inside of the cases will all have identical features. Into the left side of the case are sewn two elastic bands: one horizontal band designed to hold the round vial of test strips and a second vertical band designed to hold the two-inch monitor. We are informed that future imports may include two vertical bands to provide better support for the monitor. Into the center or spine of the case is sewn a smaller, vertical elastic band designed to hold the lancet device. The right side of the case includes a zippered textile (or plastic) pouch designed to hold the individual lancets and bottle of control solution as well as a small pocket to hold the self-test diary and reference guide.

You indicate that the carrying cases imported by your client are sold only to the manufacturer of the diabetes monitoring system, who has supplied the specifications and material necessary for their manufacture.

ISSUE:

Is the carrying case for a diabetes monitoring system properly classifiable under heading 4202, HTSUSA, as a similar container to the eo nomine exemplars of the heading or under heading 9027, HTSUSA, as an accessory to instruments and apparatus for physical or chemical analysis?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA 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 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 HTSUSA by offering guidance in understanding the scope of the headings and GRI.

Heading 9027, HTSUSA, provides for:

Instruments and apparatus for physical or chemical analysis (for example, polarimeters, refractometers, spectrometers, gas or smoke analysis apparatus); instruments and apparatus for measuring or checking viscosity, porosity, expansion, surface tension or the like; instruments and apparatus for measuring or
checking quantities of heat, sound or light (including exposure meters); microtomes; parts and accessories thereof

Note 2 to Chapter 90, HTSUSA, states, in part, that parts and accessories for machines, apparatus, instruments or articles of Chapter 90 are to be classified according to the following rules:

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;

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;

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

In HQ 962581, Customs classified the instant carrying case under heading 9027, HTSUSA. Customs stated that the diabetic monitoring system was described by heading 9027, HTSUSA, and, relying on Chapter Note 2, Chapter 90, HTSUSA, Customs classified the carrying case as an accessory under subheading 9027.90.54, HTSUSA. Noting that the term “accessory” is generally understood to mean an article of secondary importance which contributes to the effectiveness of a principal article, Customs stated that the carrying case qualified as an accessory because it facilitated the use and handling of the system’s components.

However, prior to HQ 962581, Customs had consistently classified similar articles, often described as “diabetic carrying cases” under heading 4202, HTSUSA. See New York Ruling Letter (NY) E84197, dated August 16, 1999; NY E81946, dated May 28, 1999; Port Ruling Letter (PD) C88022, June 4, 1998; HQ 958048, dated November 6, 1996; HQ 958000, dated October 20, 1995; NY 809003, dated April 26, 1995; and NY 804966, dated December 19, 1994.

Heading 4202, HTSUSA, provides for:
Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper.

The EN to heading 4202, HTSUSA, state that the heading only covers the specifically named containers and similar containers. Applying the principle of statutory construction known as ejusdem generis, which means “of the same kind,” Customs finds that the instant carrying case is covered by the term “similar containers.”

Under the rule of ejusdem generis, where an enumeration of specific things is followed by a general word or phrase, the general word or phrase is held to refer to things of the same kind as those specified. With respect to the broad reach of the residual provision for “similar containers” in heading 4202, HTSUSA, the courts have found that the rule of ejusdem generis requires that the imported merchandise possess the essential characteristices or purpose that unite the articles enumerated in order to be classified under the general term. Totes, Inc. v. United States, 18 Ct. Int’l Trade 919, 865 F. Supp. 867, 871 (1994), aff’d, 69 F.3d 495 (1995). In Totes, the Court of Appeals for the Federal Circuit (CAFC) affirmed the Court of International Trade’s (CIT) determination that the “essential characteristics and purpose of Heading 4202 exemplars are. . . to organize, store, protect and carry various items.” Applying the rationale set forth in Totes, Customs finds that the instant carrying case serves the purposes of organizing, storing, protecting and carrying various blood glucose monitoring system items and is therefore classified under heading 4202, HTSUSA, as a “similar container.”

The conflict between the “similar containers” provision of heading 4202, HTSUSA, and provisions for “accessories” was also resolved in the Totes case. The CAFC held that the “similar container” provision of heading 4202, HTSUSA, more specifically described a trunk organizer than the competing provision for automobile accessories. Id. 69 F.3d at 499. Although the trunk organizer was prima facie classifiable under the provision for similar containers and that for accessories for motor vehicles, the court stated that the competing provisions were not equal. Id. The court found that “containers,” which essentially have the one principal function of containing, even though encompassing a wide variety of items, is a more specific term than “accessory” which can include a wide variety of items having many different functions. Id. Applying this rationale to the instant case, we find that the carrying case is more specifically described by the provision for “similar containers” of heading 4202, HTSUSA, than the competing provision for accessories of instruments for physical or chemical analysis.

One distinguishable aspect of the Totes case must be addressed. In Totes, the applicable EN stated that accessories covered more specifically by another heading were excluded from the section. Furthermore, the EN listed tool bags of heading 4202, HTSUSA, as an example of an accessory covered more specifically by heading 4202, HTSUSA. In contrast, Note 2 to Chapter 90, HTSUSA, and the EN applicable to the present case do not contain similar language. However, Customs notes that the decision in the Totes case was not based on the EN. The EN were merely cited in support of the court’s decision that the provision for similar containers was more specific than the provision for accessories.

Cases for instruments of Chapter 90, HTSUSA, are not classifiable under the provision for accessories. Camera cases and binocular cases are eo nomine exemplars of heading 4202, HTSUSA, and are classified in heading 4202, HTSUSA, despite the fact that they are also accessories to cameras and binoculars classified in Chapter 90, HTSUSA. Customs believes that heading 4202, HTSUSA, would not specifically name these cases if the intent was to apply Note 2 to Chapter 90, HTSUSA, and classify cases as accessories to the goods of Chapter 90, HTSUSA. Customs is unable to distinguish the diabetes monitoring system carrying case from the eo nomine exemplars and “similar containers” of heading 4202, HTSUSA. Thus, the instant carrying case is properly classified with other similar specially shaped or fitted cases of heading 4202, HTSUSA.

With respect to classification at the subheading level, the article was classified at the time of entry under subheading 4202.32, HTSUSA, as an article of a kind normally carried in the pocket or in the handbag. However, the instant carrying case is not similar to the exemplars listed in the EN for subheading 4202.32, HTSUSA, such as wallets, key-cases and cigarette cases. Although it is of a size similar to the goods of subheading 4202.32, HTSUSA, Customs finds that its characteristics and functions are similar to other specialty cases such as musical instrument cases, camera cases, binocular cases and compact disk cases which are classified under subheading 4202.92, HTSUSA. Accordingly, Customs finds that the carrying case is classified under subheading 4202.92.9060, HTSUSA, which provides, in part, for “Trunks, suitcases spectacle cases, binocular cases, camera cases . . . : Other: With outer surface of sheeting of plastic or of textile materials: Other: Other, Other: Other.”

For a similar ruling, see HQ962132, dated October 26, 2000.

HOLDING:

The carrying case for the Accu-Check Diabetes Monitoring System is classified under subheading 4202.92.9060, HTSUSA. However, pursuant to Customs prior decision in HQ 561283, the carrying case is eligible for duty-free treatment under subheading 9817.00.96, HTSUSA, the provision for “[a]rticles 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 duty rate is “Free.”

EFFECT ON OTHER RULINGS:

HQ 962581, dated February 23, 2000, is hereby REVOKED. In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

John Durant, Director
Commercial Rulings Division


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