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HQ 965620




September 5, 2002

CLA-2:RR:CR:TE 965620 JFS

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.9026

Ms. Stacy Kelly
Global Components Corporation
3429 Knobs Valley Drive,
Floyds Knobs, Indiana 47119

RE: Request for Reconsideration of NY I80189, dated April 15, 2002; 4202.92, HTSUSA; Not 9018.90, HTSUSA; Nairobi Protocol; Tariff Classification of a Carrying Case for an Automated External Defibrillator

Dear Ms. Kelly:

On April 15, 2002, New York Ruling Letter (NY) I80189, was issued to you in response to your request for a binding ruling on the tariff classification of a carrying case for an Automated External Defibrillator (AED). In that ruling, the AED carrying case was classified under subheading 4202.92.9026, of the Harmonized Tariff Schedule Annotated (HTSUSA), which provides, in part, for: Trunks. . . handbags . . .: 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.

FACTS:

The sample, article number OIE-153, is a carrying case designed and fitted to contain an AED. It is manufactured with an exterior surface of man-made fiber textile material. The case measures approximately 12.5 inches from side to side, 10 inches from top to bottom and is 4 inches deep.

ISSUE:

Whether the defibrillator carrying case is classified as an accessory to a defibrillator or as a case of heading 4202, HTSUSA.

LAW AND ANALYSIS:

Classification under the HTSUSA 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 Harmonized Commodity Description and Coding System Explanatory Notes (EN) represent the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. The Explanatory Notes, although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUSA, and are generally indicative of the proper interpretation of these headings.

In your request for reconsideration, you state that you agree that the AED carrying case is properly classified in subheading 4202.92.9026, HTSUSA. However, you argue that Customs should have applied a “secondary classification,” classifying the AED carrying case under subheading 9018.90.64, HTSUSA, as an accessory to a defibrillator. In support of this argument, you cite NY H82954, issued to you on July 12, 2001. In NY H82954, Customs classified a case for blood glucose monitoring system under subheading 9817.00.96, HTSUSA, as an accessory to an article specially designed or adapted for the use or benefit of physically handicapped persons. Customs first determined that the blood glucose monitoring case was classified as an article of heading 4202, HTSUSA. Customs then stated that “this product is eligible for duty-free treatment under a secondary classification, subheading 9817.00.96, [HTSUSA].”

The term “secondary classification” is often used when an article is accorded duty-free status as the result of a “special classification provision.” Special classification provisions are separate and distinct from provisions that classify goods in accordance with their description. The HTSUSA consists of approximately 5,000 article descriptions that appear as headings and subheadings. These descriptions are arranged into 97 chapters grouped into 21 sections. Two final chapters, 98 and 99, are reserved for use by individual countries in the coding of provisions other than according to the terms of the Harmonized System nomenclature, e.g., special tariff programs and temporary duty suspensions or increases. Thus, all goods entered into the U.S. are classified in the provision within chapters 1 through 97 that most specifically describes the good being entered. Once a good is classified in one of the first 97 chapters, the terms of chapters 98 and 99 can be applied to determine if the good is accorded special treatment.

You contend that the AED carrying case should receive a “secondary classification” under heading 9018, HTSUSA, which generally provides for medical instruments and appliances. Heading 9018, HTSUSA, classifies goods according to their description. It is not a special classification provision of chapters 98 or 99. Therefore, the AED carrying case cannot be accorded a “secondary classification.”

The AED carrying case is classified in the heading that provides the most specific description. In HQ 962132, dated October 26, 2000, Customs considered whether a carrying case for a blood glucose monitoring system would be classified in heading 4202, HTSUSA, or in heading 9027, HTSUSA, the latter of which provides, in part, for instruments and apparatus for physical or chemical analysis and parts and accessories thereof. Customs stated that:

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 blood glucose 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.

See also, HQ 964614, dated August 21, 2001 (addressing Customs position on the classification of the "Diabetes Care System" meter cases); HQ 964765, dated June 25, 2001; HQ 964613, dated June 25, 2001; and HQ 965424, dated March 25, 2002.

Like the carrying cases for the blood glucose monitoring systems, the AED carrying case is properly classified with other similar specially shaped or fitted cases of heading 4202, HTSUSA. Moreover, there is no provision within heading 9018, HTSUSA, that provides for parts and accessories for defibrillators.

The AED carrying case could, however, be accorded treatment in one of the “special classification” provisions. The Agreement on the Importation of Educational, Scientific and Cultural Materials, known as the Florence Agreement, is an international agreement drafted by the United Nations Educational, Scientific, and Cultural Organization (UNESCO) and adopted by it in Florence, Italy, in July 1950 (17 UST 1835; TIAS 6129). It provides for dutyfree treatment and the reduction of trade obstacles for imports of educational, scientific, and cultural materials in the interest of facilitating the international free flow of ideas and information. Materials falling within the coverage of the Florence Agreement include: books, publications and documents; works of art and collector’s pieces; visual and auditory materials; scientific instruments and apparatus; and articles for the blind.

The Nairobi Protocol to the Florence Agreement on the Importation of Educational, Scientific, and Cultural Materials Act of 1982 expanded the scope of the Florence Agreement primarily by expanding dutyfree treatment for certain articles for the use or benefit of the handicapped in addition to providing dutyfree treatment for articles for the blind. The 97th Congress passed Pub. L. 97446 to ratify the Nairobi Protocol in the United States. The Senate stated that one of the goals of this law was to benefit the handicapped and show U.S. support for the rights of the handicapped. However, the Senate stated that a modification or adaptation must be significant so as to clearly render the article for use by handicapped persons. S. Rep. No. 97564, 97th Cong. 2nd Sess. (1982).

Section 1121 of the Omnibus Trade and Competitiveness Act of 1988 and Presidential Proclamation 5978 provided for the implementation of the Nairobi Protocol by inserting permanent provisions, subheadings 9817.00.92, 9817.00.94, and 9817.00.96, into the HTSUSA. These tariff provisions specifically cover, in part, “[a]rticles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons” and such articles are eligible for dutyfree treatment.

U.S. Note 4(a), chapter 98, subchapter XVII, HTSUSA (“U.S. Note 4(a)”), states that the term “blind or other physically or mentally handicapped persons” includes any person suffering from a permanent or chronic physical or mental impairment which substantially limits one or more major life activities, such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, or working.

U.S. Note 4(b), chapter 98, subchapter XVII, HTSUSA (“U.S. Note 4(b)”), states that subheadings 9817.00.92, 9817.00.94 and 9817.00.96, HTSUSA, do not cover (i) articles for acute or transient disability; (ii) spectacles, dentures, and cosmetic articles for individuals not substantially disabled; (iii) therapeutic and diagnostic articles; or (iv) medicine or drugs. Thus, in order to qualify for special treatment under subheading 9817.00.96, HTSUSA, the AED carrying case must be specially designed or adapted for the use or benefit of handicapped persons. The first requirement that must be met, is that the medical condition at issue be considered a disability. See HQ 962132, supra. Once this requirement is met, the AED carrying case must be “specially designed or adapted.” The meaning of the phrase “specially designed or adapted” has been decided on a case-by-case basis. In HQ 556449, dated May 5, 1992, Customs set forth factors it would consider in making this case-by-case determination. These factors include: 1) the physical properties of the article itself, i.e., whether the article is easily distinguishable, by properties of the design, form, and the corresponding use specific to this unique design, from articles useful to non-handicapped persons; 2) whether any characteristics are present that create a substantial probability of use by the chronically handicapped so that the article is easily distinguishable from articles useful to the general public and any use thereof by the general public is so improbable that it would be fugitive; 3) whether articles are imported by manufacturers or distributors recognized or proven to be involved in this class or kind of articles for the handicapped; 4) whether the articles are sold in specialty stores which serve handicapped individuals; and 5) whether the condition of the articles at the time of importation indicate that these articles are for the handicapped.

In light of the available evidence and above analysis, the AED carrying case is classified in subheading 4202.92.9026, HTSUSA. To determine whether the article qualifies for special treatment, it is advised that you obtain a binding ruling on the applicability of subheading 9817.00.96, HTSUSA, to the AED carrying case. If you request a binding ruling, submit all available information which would demonstrate that the AED carrying case satisfies the factors listed above.

HOLDING:

NY I80189, dated April 15, 2002, is affirmed. The AED carrying case, article number OIE-153, is classified in subheading 4202.92.9026, HTSUSA, which provides, in part, for Trunks. . . handbags . . .: 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 general column one rate of duty is 18.1 percent, ad valorem. The textile category number is 670. There are no applicable quota or visa requirements for products of World Trade Organization (“WTO”) members. It is recommended that the importer contact its local Customs Service office prior to the importation of this merchandise from a non-WTO member-country to determine the current status of any restraints or requirements 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 this textile merchandise. The designated textile and apparel category may be subdivided into parts. If subdivided, the quota and visa requirements applicable to the merchandise may be affected. Since part categories are the result of international bilateral agreements and subject to frequent renegotiations and changes, to obtain the most current information available resort may be had, close to the time of shipment, to the Status Report on Current Import Quotas (Restraint Levels). The Status Report is an internal issuance of the U.S. Customs Service that is updated weekly. It is available for inspection at local Customs Service offices and on the Customs Electronic Bulletin Board (CEBB) at: www.customs.gov.

Sincerely,

Myles B. Harmon, Acting Director

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