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HQ 965217




March 11, 2002

CLA-2 RR: CR: TE 965217 ttd

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.9060, 9817.00.96

Port Director
U.S. Customs Service
555 Battery Street
San Francisco, CA 94126

RE: Application for Further Review of Protest No. 2809-01-100682; Classification of a Carrying Case for a Blood Glucose Monitoring System; Diabetes; Nairobi Protocol; Subheading 9817.00.96, HTSUSA; Articles Specially Designed or Adapted for the Use or Benefit of the Blind or Other Physically or Mentally Handicapped; 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 Port Director:

The purpose of this letter is to address the Application for Further Review (AFR) of Protest Number 2809-01-100682, which you forwarded to our office for review. Meeks & Sheppard, on behalf of Koszegi Industries (Protestant), timely filed the AFR on September 20, 2001. The AFR challenges the liquidation of five entries of "blood glucose monitoring" meter cases, entered on August 9, 2000, August 17, 2000 and September 26, 2000, which were classified under heading 4202 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample was forwarded with the AFR, and, is being returned to you, per your request.

The Protestant asserts that, under The Nairobi Protocol to the Agreement on the Importation of Educational, Scientific and Cultural Materials Act of 1982, (hereafter "Nairobi Protocol") the subject "blood glucose monitoring" meter cases are properly classifiable in subheading 9817.00.96, HTSUSA, at a "Free" rate of duty.

FACTS:

The article under protest is a carrying case (Style No. 6484) for a blood glucose monitoring system identified by the Protestant as the FreeStyle™ Blood Glucose Monitoring System. The Protestant submits that the product was designed specifically and exclusively for TheraSense Inc. (TheraSense), for use as an accessory with TheraSense's "FreeStyle™ Blood Glucose Monitoring System (Freestyle System). The FreeStyle™ System is sold exclusively by TheraSense in kits that include: a meter; test strips; control solution; lancing device; owner's booklet; meter case; reference guide; warranty card; and logbook. The kits are designed and adapted for use by persons suffering from diabetes. The FreeStyle™ System is used by a diabetic person for testing blood glucose levels. The meter case must be purchased as part of the FreeStyle™ System and is not sold separately.

The meter case measures approximately 10 inches in width by 5-1/2 inches in length in the "open" position and 5 inches in width by 5-1/2 inches in length by 1-3/4 inch in depth in the "closed" or "folded" position. The exterior is black nylon with double polyurethane coating. One side of the case features two mesh pockets with a black nylon flap and hook and loop closures. One mesh pocket is designed to hold the FreeStyle™ meter. The other compartment will hold the test strips and control solution. The Protestant submits that the mesh material is used because it is less likely to the scratch the FreeStyle™ Meter's large display lens. The reverse side of the meter case consists of a triangular mesh pocket with a zipper closure. The flapped pocket is designed to hold the lancets. The same side also features a triangular pocket sewn into the case for the log book. In the middle of the case, when open, is a loop to hold a pen for writing in the log book. The meter case is double-lined with polyurethane plastic material, which provides additional protection for the FreeStyle™ Meter. The TheraSense™ logo is printed on the exterior of the meter case.

The Protestant entered five shipments of the carrying cases, under heading 4202, HTSUSA, which provides, in part, for similar containers to the eo nomine exemplars of the heading. On September 20, 2001, the Protestant filed a protest against the classification, liquidation and tariff treatment and made application for further review claiming that the merchandise should be classified in subheading 9817.00.96, HTSUSA, which provides, in part, for articles specially designed or adapted for the use or benefit of physically handicapped persons, with a free rate of duty.

ISSUE:

Whether the carrying case for a blood glucose monitoring system is properly classifiable under heading 4202, HTSUSA, as a similar container to the eo nomine exemplars of the heading. Whether the carrying case for a blood glucose monitoring system is eligible for duty-free treatment under subheading 9817.00.96, HTSUSA.

LAW AND ANALYSIS:

Headquarters Ruling Letter (HQ) 964614, dated August 21, 2001 (copy enclosed), addresses Customs position on the classification of "blood glucose monitoring" meter cases. See also HQ 964765, dated June 25, 2001; HQ 964613, dated June 25, 2001; and HQ 962132, dated October 26, 2000. In HQ 964614, a carrying case for a "blood glucose monitoring" meter, identical to the one at issue, was classified under subheading 4202.92.9060, HTSUSA. Moreover, just like the carrying case in HQ 964614, the subject carrying case is eligible for duty-free treatment under subheading 9817.00.96, HTSUSA. Accordingly, we incorporate the LAW AND ANALYSIS section of that ruling in this decision, as it is dispositive of the issue raised by the Protestant.

The merchandise under consideration should be classified in 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." However, the subject 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 physically 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."

Please be advised that PD C88022 and PD C88021, both dated June 4, 1998, which you cite in your Protest Report, are not controlling in this case. While PD C88022 correctly classified a test meter carrying case in heading 4202, HTSUSA, it did not address classification under heading 9817 under the Nairobi Protocol. Likewise, PD C88021 did not address classification in heading 9817 under the Nairobi Protocol.

HOLDING:

The carrying case for the "blood glucose monitoring" meter is classified under subheading 4202.92.9060, HTSUSA. However, pursuant to Customs prior decision in HQ 561283, dated August 26, 1999, 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."

The protest should be ALLOWED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, a copy of this decision attached to Customs Form 19, Notice of Action, should be provided by your office to the protestant no later than 60 days from the date of this decision. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of this decision the Office of Regulations and Rulings will take steps to make this decision available to Customs personnel, and to the general public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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