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HQ 563125





December 27, 2004

CLA-02 RR:CR:SM 563125 AL

Category: CLASSIFICATION

Laura Roberts
Eagle Global Logistics
2151 Airwest Boulevard
Plainfield, Indiana 46168

RE: Eligibility of AC and DC Power Adapters for duty-free treatment under subheading 9817.00.96, HTSUS; Nairobi Protocol

Dear Ms. Roberts:

This is in response to your ruling request dated September 7, 2004, on behalf of Medtronic Physio-Control of Redmond, Washington (“Medtronic”), concerning the eligibility for duty-free treatment under subheading 9817.00.96, of the Harmonized Tariff Schedule of the United States (“HTSUS”), on AC and DC Power Adapters. A sample was submitted for our review.

FACTS:

According to your request, Medtronic is a domestic manufacturer of defibrillators, in particular, the Physio-Control LIFEPAK 12 defibrillator/monitor series (“LIFEPAK 12”). The LIFEPAK 12 is an advanced resuscitation portable device that is powered by an AC and DC power adapter that also charges the battery pack in the LIFEPAK 12. The AC and DC power adapters connect to the LIFEPAK 12 by a “short pigtail” and are also customized to fit in the carrying bag along with the LIFEPAK 12.

The AC and DC power adapter has two power outputs to the LIFEPAK 12. One of those outputs is for the main 12V source and the other for the battery charger output. The AC and DC power adapters have five normal operation modes for each of its two host battery wells: standby, charging, charge pending, ready and failed. The AC and DC power adapters function as a relay system between the battery pack in the LIFEPAK 12 and the user to indicate the mode or status of the battery pack’s function. For example, if two battery packs occupy the two host wells and the AC and DC power adapter is connected, then one battery well will default to the “charging” mode and the other battery well will default to “charge pending” mode, as it is set up by the charge sequence protocol. If the AC and DC power adapters detect a failure, the adapters will light the “service” light and send a “system fault” message and a “disconnect the batteries” message to the LIFEPAK 12.

You have stated in your request that the imported AC and DC power adapters have been engineered for exclusive use with the LIFEPAK 12 and cannot be used for other types of equipment.

LAW and ANALYSIS:

The Nairobi Protocol to the Agreement on the Importation of Educational, Scientific and Cultural Materials established duty-free treatment for certain articles for the use or benefit of the handicapped in addition to providing duty-free treatment for articles for the blind. 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 HTSUS. These tariff provisions specifically state that “articles specifically designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons” are eligible for duty-free treatment.

U.S. Note 4(a), Chapter 98, HTSUS, 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, HTSUS, states that subheadings 9817.00.92, 9817.00.94 and 9817.00.96 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.

U.S. Customs and Border Protection (“CBP”) has held that a person suffering from arrhythmia or bradycardia is physically handicapped as that term is defined in U.S. Note 4(a) to Subchapter XVII. See Headquarters Ruling Letter (“HRL”) 556243, dated December 2, 1991, and HRL 557302, dated March 17, 1993, both rulings held that defibrillator pacemakers are eligible for duty-free treatment under subheading 9817.00.96, HTSUS. Therefore, persons who suffer from irregular heartbeats are considered handicapped within the meaning of U.S. Note 4(a).

The issue is whether the AC and DC power adapters are “specially designed or adapted” for the use or benefit of handicapped persons, which is required under subheading 9817.00.96, HTSUS. The meaning of the phrase “specifically designed or adapted” has been decided on a case-by-case basis. In HRL 556449, dated May 5, 1992, CBP 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 indicates that these articles are for the handicapped.

In HRL 563109, dated October 19, 2004, CBP determined that imported defibrillator cases are specially designed or adapted for the use or benefit of handicapped person and are eligible for duty-free treatment under subheading 9817.00.96, HTSUS. In the instant case, the AC and DC power adapters are similar to the defibrillator cases where these AC and DC power adapters are specially designed to power the LIFEPAK 12 defibrillator/monitor series, and thus are intended for the use or benefit of handicapped persons. According to the “Product Requirements Specification” report on the AC and DC power adapters and supplemental information regarding the AC and DC power adapters from Medtronic, the AC and DC power adapters “have been engineered for exclusive use with the LIFEPAK 12 and cannot be used for other types of equipment.” Therefore, the AC and DC power adapters are eligible for duty-free treatment under subheading 9817.00.96, HTSUS.

HOLDING:

Based on the information submitted, the imported AC and DC power adapters are specifically designed or adapted for the use or benefit of handicapped persons and thus, are eligible for duty-free treatment under subheading 9817.00.96, HTSUS.

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs and Border Protection officer handling the transaction.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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