CLA-2 CO:R:C:S RAH
TARIFF NO. 9817.00.96
Ms. Evelyn Appel-Schaefer
James J. Boyle & Co.
7505 N.E. Ambassador Place, Suite B
Portland, OR 97220
RE: Eligibility of Pacemakers for duty-free treatment under the
Nairobi Protocol
Dear Ms. Schaefer:
This is in response to your letter of November 17, 1992,
requesting a binding ruling on the tariff classification of
pacemakers under subheading 9817.00.96, Harmonized Tariff
Schedule of the United States (HTSUS).
FACTS:
The five pacemakers in question are described as follows:
Nanos 01 UP Multi-programmable unipolar single chamber
pacemaker. Pacing rates programmable from 30 to 110
ppm.
Nanos 01 BP Multi-programmable bipolar single chamber
pacemaker. Pacing rates programmable from 30 to 110
ppm.
Neos 02 B Multi-programmable unipolar single chamber
pacemaker. Rates programmable from 30 to 110 ppm.
Kalos 05 BP Multi-programmable bipolar single chamber
pacemaker.
Kalos 05 UP Multi-programmable unipolar single chamber
pacemaker.
ISSUE:
Whether the pacemakers in question are eligible for duty-
free treatment under subheading 9801.00.96, HTSUS, upon
importation into the U.S.
LAW AND ANALYSIS:
The Nairobi Protocol to the Agreement on the Importation of
Educational, Scientific, and Cultural Materials Act of 1982,
established the duty-free treatment for certain articles for the
handicapped. Presidential Proclamation 5978 and Section 1121 of
the Omnibus Trade and Competitiveness Act of 1988, provided for
the implementation of the Nairobi Protocol into subheadings
9817.00.92, 9817.00.94, and 9817.00.96, HTSUS. These tariff
provisions specifically state that "[a]rticles 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), subchapter XVII, 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." Clearly,
those individuals who are suffering from heart problems which
mandate the use of pacemakers are encompassed by this note.
U.S. Note 4(b), subchapter XVII, Chapter 98, HTSUS, which
establishes limits on classification of products in these
subheadings, states as follows:
(b) 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.
The issue of what constitutes a "therapeutic" article under
the Nairobi Protocol was addressed in Richards Medical Co. v.
U.S., 720 F.Supp. 998 (CIT 1989), aff'd, 910 F.2d 828 (Fed.Cir.
1990), which held that "therapeutic" articles are those that are
used to heal or cure the condition causing a handicap, as opposed
to those articles which are designed to compensate for, or adapt
to, the handicapped condition. In essence, this holding narrowly
defines the term "therapeutic", and, as a result, limits the
number of articles which would be precluded from duty-free
treatment under U.S. Note 4(b) as "therapeutic".
The issue as to whether pacemakers are "therapeutic" and,
therefore, precluded from duty-free treatment under U.S. Note
4(b), was decided in Headquarters Ruling Letter (HRL) 556243
dated December 2, 1991, in which we held that defibrillator
pacemakers, as well as conventional pacemakers, do not heal or
cure the underlying heart conditions of the handicapped
individuals who utilize them; they merely control and help those
individuals adapt to their handicapped condition and therefore
are not precluded from duty-free treatment as "therapeutic"
articles under U.S. Note 4(b)). Accordingly, based on the
precedent set forth in HRL 556243, we find that the five
pacemakers in question are not precluded from duty-free treatment
as "therapeutic" articles under U.S. Note 4(b).
HOLDING:
The pacemakers at issue constitute articles specially
designed for the use or benefit of the physically handicapped
under subheading 9817.00.96, HTSUS, and will not be precluded
from duty-free treatment on the basis of the exclusion for
"therapeutic" articles.
Sincerely,
John Durant, Director
Commercial Rulings Division