CLA-2 RR:CR:TE 962132 SS
Port Director
United States Customs Service
49 Pavilion Avenue
Providence, RI 02905
Re: Application for Further Review of Protest No. 0502-98-100032; 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 Sir:
This is in response to the Application for Further Review of Protest Number 0502-98-100032, timely filed by Meeks & Sheppard, on behalf of the importer Medport, Inc. (“Protestant”), on June 25, 1998, contesting the classification of a carrying case for a blood glucose monitoring system under subheading 4202.32.9550 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample of the carrying case and “Owner’s Booklet” for the compact blood glucose monitoring system was forwarded with the Application for Further Review.
FACTS:
The article under protest is a carrying case for a blood glucose monitoring system identified by the Protestant as a “Lifescan Meter Case.” The Protestant submits that the product was specifically and exclusively designed for Lifescan, Inc. (“Lifescan”), for use as an accessory with Lifescan’s “One Touch Fast Take Compact Blood Glucose Monitoring System” (“Fast Take System”). The Fast Take System is sold exclusively by Lifescan in kits that include: a meter; strips; control solution; Penlet II automatic blood sampler; sterile lancets; owner’s booklet; Lifescan meter case; reference guide; warranty card; logbook; tele-library card and two batteries. The kits are designed and adapted for use by persons suffering from diabetes. The Fast Take System is used by a diabetic person for testing blood glucose levels. The carrying case can only be purchased as part of the Fast Take System and is not sold separately.
The carrying case is manufactured of 100 percent man-made textile materials. The carrying case measures 6-1/2 inches in width by 5-1/4 inches in length in the “open” position and 3-1/2 inches in width by 5-1/4 inches in length in the “closed” or “folded” position. The exterior is black nylon with double polyurethane coating. One side of the carrying case features a full-width zippered mesh pocket divided into two compartments. One compartment is designed to hold the Fast Take System meter. The other compartment will hold the test strips and control solution. The Protestant submits that the mesh material was specifically selected for this product because the meter stored in the mesh compartment has a large display lens susceptible to scratching if not protected. Abrasion tests conducted by the Protestant indicate that the mesh material protects the meter’s display lens from scratching. To the left and right of the mesh material are hook and loop closures that enable the carrying case to be folded in half for convenient carrying. The “fold” line is double stitched to provide reinforced strength and protection to the lens. The reverse side of the carrying case consists of a pocket with a flap and hook and loop closure. The flapped pocket is designed to hold the automatic blood sampler. The same side also features a belt loop allowing the folded case to be conveniently carried. Between the mesh compartment and the flapped pocket, the carrying case is double-lined with polyurethane which provides additional protection for the meter. The carrying case has a sewn-on cloth label with the “Lifescan” logo prominently displayed in stylized lettering. The carrying case is sized to accommodate safe and protective storage of the Fast Take System.
Protestant entered two shipments of the carrying cases on May 13, 1997, and June 26, 1997, under subheading 4202.32.9550, HTSUSA, which provides, in part, for articles normally carried in the pocket or in the handbag with outer surface of textile materials, with a duty rate of 19.3 percent. On March 27, 1998, and May 15, 1998, the Port liquidated the merchandise under subheading 4202.32.9550, HTSUSA. On June 15, 1998, Protestant filed a protest against the classification, liquidation and tariff treatment and made application for further review claiming that the merchandise should be classified under 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. In the alternative, Protestant claimed that the merchandise should be classified under headings 9027 or 9018, HTSUSA, as an accessory. Protestant filed a supplemental protest on July 23, 1998.
ISSUE:
I. Is the carrying case for a blood glucose monitoring system properly classifiable under heading 4202, HTSUSA, as a similar container to the eo nomine exemplars of the heading or under heading 9027, HTSUSA, as an accessory to instruments and apparatus for physical or chemical analysis?
II. Is the carrying case for a blood glucose monitoring system eligible for duty-free treatment under subheading 9817.00.96, HTSUSA?
LAW AND ANALYSIS:
Heading 4202, HTSUSA
Classification of goods under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI.
Heading 9027, HTSUSA, provides for:
Instruments and apparatus for physical or chemical analysis (for example, polarimeters, refractometers, spectrometers, gas or smoke analysis apparatus); instruments and apparatus for measuring or checking viscosity, porosity, expansion, surface tension or the like; instruments and apparatus for measuring or
checking quantities of heat, sound or light (including exposure meters); microtomes; parts and accessories thereof
Note 2 to Chapter 90, HTSUSA, states, in part, that parts and accessories for machines, apparatus, instruments or articles of Chapter 90 are to be classified according to the following rules:
Parts and accessories which are goods included in any of the headings of this chapter or of chapter 84, 85 or 91 (other than heading 8485, 8548 or 9033) are in all cases to be classified in their respective headings;
Other parts and accessories, if suitable for use solely or principally with a particular kind of machine, instrument or apparatus, or with a number of machines, instruments or apparatus of the same heading (including a machine, instrument or apparatus of heading 9010, 9013 or 9031) are to be classified with the machines, instruments or apparatus of that kind;
All other parts and accessories are to be classified in heading 9033.
In Headquarters Ruling Letter (HQ) 962581, dated February 23, 2000, Customs classified a similar carrying case for a diabetes monitoring system under heading 9027, HTSUSA. Customs stated that the diabetic monitoring system was described by heading 9027, HTSUSA, and, relying on Chapter Note 2, Chapter 90, HTSUSA, Customs classified the carrying case as an accessory under subheading 9027.90.54, HTSUSA. Noting that the term “accessory” is generally understood to mean an article of secondary importance which contributes to the effectiveness of a principal article, Customs stated that the carrying case qualified as an accessory because it facilitated the use and handling of the system’s components. Similarly, the instant carrying case facilitates the use and handling of the monitoring system because, in the event of an emergency, the organization of the system allows the user to find needed components quickly.
However, prior to HQ 962581, Customs had consistently classified similar articles, often described as “diabetic carrying cases” under heading 4202, HTSUSA. See New York Ruling Letter (NY) E84197, dated August 16, 1999; NY E81946, dated May 28, 1999; Port Ruling Letter (PD) C88022, June 4, 1998; HQ 958048, dated November 6, 1996; HQ 958000, dated
October 20, 1995; NY 809003, dated April 26, 1995; and NY 804966, dated December 19, 1994.
Heading 4202, HTSUSA, provides for:
Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper.
The EN to heading 4202, HTSUSA, state that the heading only covers the specifically named containers and similar containers. Applying the principle of statutory construction known as ejusdem generis, which means “of the same kind,” Customs finds that the instant carrying case is covered by the term “similar containers.”
Under the rule of ejusdem generis, where an enumeration of specific things is followed by a general word or phrase, the general word or phrase is held to refer to things of the same kind as those specified. With respect to the broad reach of the residual provision for “similar containers” in heading 4202, HTSUSA, the courts have found that the rule of ejusdem generis requires that the imported merchandise possess the essential characteristices or purpose that unite the articles enumerated in order to be classified under the general term. Totes, Inc. v. United States, 18 Ct. Int’l Trade 919, 865 F. Supp. 867, 871 (1994), aff’d, 69 F.3d 495 (1995). In Totes, the Court of Appeals for the Federal Circuit (CAFC) affirmed the Court of International Trade’s (CIT) determination that the “essential characteristics and purpose of Heading 4202 exemplars are. . . to organize, store, protect and carry various items.” Applying the rationale set forth in Totes, Customs finds that the instant carrying case serves the purposes of organizing, storing, protecting and carrying various blood glucose monitoring system items and is therefore classified under heading 4202, HTSUSA, as a “similar container.”
The conflict between the “similar containers” provision of heading 4202, HTSUSA, and provisions for “accessories” was also resolved in the Totes case. The CAFC held that the “similar container” provision of heading 4202, HTSUSA, more specifically described a trunk organizer than the competing provision for automobile accessories. Id. 69 F.3d at 499. Although the trunk organizer was prima facie classifiable under the provision for similar containers and that for accessories for motor vehicles, the court stated that the competing provisions were not equal. Id. The court found that “containers,” which essentially have the one principal function of containing, even though encompassing a wide variety of items, is a more specific term than “accessory” which can include a wide variety of items having many different functions. Id. Applying this rationale to the instant case, we find that the carrying case is more specifically described by the provision for “similar containers” of heading 4202, HTSUSA, than the competing provision for accessories of instruments for physical or chemical analysis.
One distinguishable aspect of the Totes case must be addressed. In Totes, the applicable EN stated that accessories covered more specifically by another heading were excluded from the section. Furthermore, the EN listed tool bags of heading 4202, HTSUSA, as an example of an accessory covered more specifically by heading 4202, HTSUSA. In contrast, Note 2 to Chapter 90, HTSUSA, and the EN applicable to the present case do not contain similar language. However, Customs notes that the decision in the Totes case was not based on the EN. The EN were merely cited in support of the court’s decision that the provision for similar containers was more specific than the provision for accessories.
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.
With respect to classification at the subheading level, the article was classified at the time of entry under subheading 4202.32, HTSUSA, as an article of a kind normally carried in the pocket or in the handbag. However, the instant carrying case is not similar to the exemplars listed in the EN for subheading 4202.32, HTSUSA, such as wallets, key-cases and cigarette cases. Although it is of a size similar to the goods of subheading 4202.32, HTSUSA, Customs finds that its characteristics and functions are similar to other specialty cases such as musical instrument cases, camera cases, binocular cases and compact disk cases which are classified under subheading 4202.92, HTSUSA. Accordingly, Customs finds that the carrying case is classified under subheading 4202.92.90, HTSUSA, as an “other” container or case.
Customs finds that the instant carrying case is not classifiable under heading 9027, HTSUSA. To the extent that rulings exist which are inconsistent with the analysis set forth in this ruling, please be advised that Customs is in the process of reviewing those ruling to determine whether they should be the subject of a proposed notice of revocation or modification.
II. Heading 9817, HTSUSA
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 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. 97 564, 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 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, 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.
Section 3 of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. 12102(2) defines a disability as “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” Because this definition uses language similar to the definition set forth above in U.S. Note 4(a) it is instructive to examine the case law under the ADA. The federal courts have held that diabetes substantially limits one or more of the major life activities of an individual. See Canon v. Clark, 883 F. Supp. 718 (S.D. Fla. 1995), Sarsycki v. United Parcel Service, 862 F.
Supp. 336 (W.D. Okla. 1994), and EEOC v. The Chrysler Corporation, 917 F. Supp. 1164 (E.D. Mich. 1996).
As discussed in the cases above, people with diabetes are limited in their ability to perform a broad range of jobs because they must be able to monitor their blood sugar, inject insulin if prescribed, and have work restrictions due to excessive urination, possible nausea, dizziness and fainting. This interferes with working a major life activity. Therefore, persons with diabetes suffer from a permanent or chronic physical impairment which substantially limits a major life activity and therefore, are considered physically handicapped persons under U.S. Note 4(a). We note that Customs has previously ruled that persons with diabetes are considered physically handicapped within the meaning of U.S. Note 4(a). See HQ 561020, dated October 14, 1998 and HQ 561283, dated August 26, 1999.
Finding that diabetes is considered a physical handicap, however, does not end our inquiry. The superior text in subheading 9817.00.96, HTSUSA, requires that the carrying case be specially designed or adapted for the use or benefit of handicapped persons. 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 HQ 561020 (cited above), Customs classified three styles of diabetes organizers also imported by Medport, Inc., the Protestant in this case. The diabetes organizers had specialized features such as compartments for meters, separate cool compartments for maintaining insulin at the proper temperature, compartments with elastic straps to hold syringes and insulin bottles, items to measure temperature, and detachable medical waste pouches. The “wallet organizer”, “daily organizer” and “travel organizer” were zippered, compartmentalized cases designed to hold varying amounts of insulin and related supplies. Customs examined the samples and literature prepared by Medport, Inc. and found that the diabetes organizers had distinctive design features and characteristics which easily distinguished them from articles useful to the general public so that any use thereof by the general public would be so improbable that it would be fugitive. Customs noted that Medport, Inc. specializes in the health care area and specifically, with articles for people with diabetes. Customs found that the diabetes organizers were specially designed or adapted for the use or benefit of handicapped persons and were entitled to duty free treatment under subheading 9817.00.96, HTSUSA. For an additional ruling in support of this position see HQ 561283 (cited above).
The samples and literature prepared by Medport support the assertion that the “Lifescan Meter Case” is an article specially designed for the use of physically handicapped persons. The “Lifescan Meter Case” has distinctive design features and characteristics which make it distinguishable from articles useful to the general public. The carrying case is sold exclusively with the diabetic meters as part of the “One Touch Fast Take Compact Blood Glucose Monitoring System.” The Protestant states that the carrying case is never sold separately. The carrying case is manufactured to specifications provided by Lifescan which ensures a unique fit. The case has a mesh compartment that was specifically selected and tested so that it will not scratch the diabetic meter’s lenses. The monitoring system is specifically designed and adapted for use by diabetics to test their blood glucose levels. Selling the carrying case with the system ensures that the cases will be used by those who use the meters, i.e., diabetics. It is unlikely that a person not suffering from diabetes would purchase the system in order to use the carrying case. Although it is possible that someone could find a fugitive use for these cases, the compartments are so small that the cases would not have a general use. These small compartments are appropriate for carrying the intended items included in the blood glucose monitoring system. Lastly, we note that the Protestant in this case is Medport, Inc., a company that specializes in the health care/disabilities market. See HQ 561020 (cited above). Based on the above factors, we find that the carrying case is “specially designed and adapted” for the use or benefit of handicapped people and is entitled to duty-free treatment under subheading 9817.00.96, HTSUSA.
As stated previously, U.S. Note 4(b), subchapter XVII, Chapter 98, HTSUSA, establishes certain limitations on the classification of products under subheading 9817.00.96, HTSUSA. Specifically, diagnostic articles are excluded from the subheading. While the carrying case at issue is used to transport a collection of articles used by patients to monitor blood glucose level for the purpose of ascertaining whether treatment (i.e., an injection of insulin) is appropriate at any given time, it is not used as part of an examination of symptoms to determine the presence of a disease or ailment, and is therefore not precluded from duty-free treatment under U.S. Note 4(b) as a “diagnostic article.” See HQ 561283 (cited above).
HOLDING:
In 1997, the “Lifescan Meter Case” was classifiable under subheading 4202.92.9025, HTSUSA. The general column one duty rate was 19.3% ad valorem and the applicable textile category designation was 670.
However, the “Lifescan Meter 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.” Visa and quota restrictions will still be applicable.
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, you are to mail this decision, together with the Customs Form 19, to the Protestant no later than 60 days from the date of this letter. 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 the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the 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 methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division