CLA-2 RR:CR:SM 563109 KSG
Margaret R. Polino, Esq.
Neville Peterson LLP
17 State Street- 19th Floor
New York, NY 10004
RE: Eligibility of defibrillator cases for duty-free treatment under subheading 9817.00.96; Nairobi Protocol; articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped
Dear Ms. Polino:
This is in reference to your letter dated August 31, 2004, requesting a binding ruling on behalf of Medtronic, Inc., on the eligibility for duty-free treatment under subheading 9817.00.96, of the Harmonized Tariff Schedule of the United States (“HTSUS”), of imported defibrillator cases. You submitted two samples for our examination.
FACTS:
The defibrillator cases (“cases”) are made in China and are made of polyester fabric. The dimensions of the cases correspond to the shape of automated external defibrillators they are designed to carry. One sample case has a special side opening to access the battery. This case also features an inside pocket to store electrodes and cables. The other sample has a velcro layer on the inside to secure the defibrillator in place.
The cases manufactured for Medtronic are sold only in conjunction with its sale of defibrillators.
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ISSUE:
Whether the imported defibrillator cases are eligible for duty-free treatment under subheading 9817.00.96, HTSUS.
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. 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 specially 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.
Customs has previously 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 holding
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that defibrillator pacemakers are eligible for duty-free treatment under subheading 9817.00.96, HTSUS. Therefore, persons who suffer from irregular heart beats are considered handicapped within the meaning of U.S. Note 4(a).
The issue is whether the defibrillator cases 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.
Customs suggested in HRL 965620, dated September 5, 2002, that imported defibrillator cases might be eligible for duty-free treatment under subheading 9817.00.096, HTSUS, but did not making a finding because there was insufficient information presented. Based on the special design of the samples submitted (the dimensions, special side opening to access the battery, an inside pocket to store electrodes and cables, a velco layer on the inside to secure the defibrillator in place), we find that the defibrillator cases submitted are “specially designed or
Adapted and would be eligible for duty-free treatment under subheading 9817.00.96, HTSUS.
HOLDING:
The imported defibrillator cases are specially designed or adapted for the use or benefit of handicapped persons and are eligible for duty-free treatment under subheading 9817.00.96, HTSUS.
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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,
Myles B. Harmon, Director
Commercial Rulings Division