CLA-2 RR:CR:SM 561223 KSG
John H. Alpine
Import Administrator
Eveready Battery Company, Inc.
25225 Detroit Road
P.O. Box 450777
Westlake, OH 44145
RE: Eligibility of hearing aid batteries for duty-free treatment under subheading 9817.00.96; Nairobi Protocol; articles specifically designed or adapted for the use or benefit of the blind or other physically or mentally handicapped;
Dear Mr. Alpine:
This is in reference to your letter dated November 11, 1998, requesting a binding ruling on the eligibility for duty-free treatment under subheading 9817.00.96, of the Harmonized Tariff Schedule of the United States (“HTSUS”), of imported hearing aid batteries.
FACTS:
This case involves imported hearing aid air cell batteries. You state that hearing aid air cell batteries must have adequate access to the air and therefore, are not designed to be used in applications other than hearing aid devices. The battery was designed to be used in quick drain applications and in devices which are not airtight. Although the battery conceivably could be used in other applications that are not airtight, you state that the life of the device would be greatly shortened and the operating performance reduced. You also submitted a page from your brochure that shows that the batteries are sold and marketed for hearing aids.
ISSUE:
Whether the hearing aid batteries are eligible for duty-free treatment under subheading 9817.00.96, HTSUS.
LAW AND ANALYSIS:
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 duty-free 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 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. The 97th Congress passed Pub. L. 97-446 to ratify the Nairobi Protocol in the U.S. The Senate stated in its Report that one of the goals of this law was to benefit the handicapped and show U.S. support for the rights of the handicapped. The Senate, however, did state that it did not intend “that an insignificant adaptation would result in duty-free treatment for an entire relatively expensive article... the modification or adaptation must be significant so as to clearly render the article for use by handicapped persons.” S. Rep. No. 97-564, 97th Cong. 2nd Sess. (1982). The Senate was concerned that persons would misuse this tariff provision to avoid paying duties on expensive products.
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.
Hearing is listed in U.S. Note 4(a) as a major life activity. Therefore, persons who are hearing-impaired are considered handicapped within the meaning of U.S. Note 4(a). See Headquarters Ruling Letter (“HRL”) 556139, dated November 21, 1991.
We note that the superior text in subheading 9817.00.96 was amended by Presidential Proclamation in 1995 to encompass “parts and accessories.” See Presidential Proclamation 6821, 60 FR 47663 at 47674, dated September 13, 1995. This amendment was effective for goods entered on or after January 1, 1995. Therefore, we need not address the issue of whether the hearing aid batteries are parts or a completely finished and self contained object. See HRL 555965, dated November 21, 1991.
The second issue is whether the batteries involved in this case are “specially designed or adapted” for the use or benefit of handicapped
persons, which is required by the superior text in subheading 9817.00.96, HTSUS.
The meaning of the phrase “specially designed or adapted” has been decided on a case-by-case basis. In HRL 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 indicates that these articles are for the handicapped.
The first consideration with regard to the hearing aid batteries is that they are designed for use with hearing aids, which are themselves articles specially designed for the use of physically handicapped persons. In Richards Medical Co. v. United States, 720 F. Supp. 998 (CIT 1989), the court determined that imported instruments used exclusively in implanting a prosthesis were duty-free under subheading 9817.00.96, HTSUS, irrespective of the fact that the instruments were used by a medical doctor and not the handicapped persons themselves. In HRL 557028, dated March 19, 1993, Customs concluded that an imported pacemaker monitoring system is eligible for duty-free treatment under subheading 9817.00.96. Customs noted that the articles were designed for use solely with pacemakers, which are themselves articles specially designed for the use of physically handicapped persons. Therefore, Customs held that the pacemaker monitoring systems were specially designed or adapted for the use or benefit of a handicapped person.
This case is analogous to HRL 557028; the hearing aid battery is designed for use solely with hearing aids, which are themselves articles specially designed for the use of physically handicapped persons.
With regard to the consideration of whether the hearing aid batteries would be useful to the general public, the physical properties of the article are distinguishable from batteries that would be useful for uses other than for hearing aid devices because of the unique need for adequate access to the air and because of its unique size and shape. We believe that any use by the general public is so improbable that it would be fugitive. Further, the batteries are only sold and marketed to be used as batteries for hearing aid devices. Based on the above, we find that the batteries are specially designed or adapted for the use or benefit of the handicapped. Accordingly, the imported hearing aid batteries are entitled to duty free treatment under subheading 9817.00.96, HTSUS.
HOLDING:
The imported hearing aid batteries are specially designed for use in a hearing aid and therefore, we find that they are specially designed or adapted for the use or benefit of handicapped persons. The hearing aid batteries 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 officer handling the transaction.
Sincerely,
John Durant, Director
Commercial Rulings Division