CLA-2 RR:IA 561801 RFC
Port Director
Port of New York
U.S. Customs Service
6 World Trade Center, Room 761
New York, NY 10048-0945
RE: Application for Further Review of Protest No. 1001-00-100554;
HTSUS Subheading 9817.00.96; Specially Designed or Adapted for the Handicapped; Therapeutic; Nairobi Protocol
Dear Sir or Madam:
This is in reference to a Protest and Application for Further Review timely filed by counsel on behalf of Carl Zeiss, Inc., contesting the denial of the classification in and duty-free exemption provided under subheading 9817.00.96, of the Harmonized Tariff Schedule of the United States ("HTSUS"), for certain neurological microscopes. The merchandise was entered on January 6, 1999. The merchandise was liquidated on November 5, 1999. The protest was filed on February 3, 2000. The protest number is 1001 00-100554. The entry was liquidated under HTSUS subheading 9011.10.8000.
FACTS:
This case involves the classification of a microscope used in neurological microsurgery. The microscope was made in Germany and imported by Carl Zeiss, Inc.
The microscopes are said to be used by surgeons in surgery on the brain and spine. Although these instruments can be used for different types of surgery on the brain or spine, the principal use is said to be in craniotomy procedures to resect brain tumors. In documents submitted on behalf of the protestant, it is indicated that this procedure is intended to remove the tumor but not cure the underlying condition.
ISSUE:
Whether the OPMI Neuro/NC 4 System surgical neurological microscope is classifiable in and eligible for duty-free treatment under HTSUS subheading 9817.00.96.
LAW AND ANALYSIS:
Subheading 9817.00.96 to subchapter XV to chapter 98 to the HTSUS provides for a free rate of duty for certain "[a]rticles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons...."1 In regard to subheading 9817.00.96 (and related subheadings 9817.00.92 and 9817.00.94), U.S. Note 4 to subchapter XVII to chapter 98 provides as follows:
(a) For purposes of subheadings 9817.00.92, 9817.00.94 and 9817.00.96, 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.
(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.
U.S. Note 4 to subchapter XVII to HTSUS chapter 98.
The first issue presented in the instant case is whether the microscope under consideration is an "article specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons." The microscope is designed to assist a surgeon in performing brain and nerve surgery that includes surgery to remove brain tumors. Presumably, this procedure involving brain tumors helps to alleviate the medical problems or manifestations associated with a brain tumor (while not curing the underlying disease that caused the tumor) in order to improve a person's quality of life who is afflicted with a brain tumor. Therefore, in light of the above, the microscopes are articles specially designed or adapted for the use or benefit of physically handicapped persons for purposes of subheading 9817.00.96. See generally, HQ 9524465 (January 27, 1993).
The second issue presented in the instant case is whether the microscope under consideration is a therapeutic article within the meaning of U.S. Note 4(b)(iii) to subchapter XVII to chapter 98. If found to be therapeutic within the meaning of that note, the microscope would be excluded from classification in and duty-free treatment under subheading 9817.00.96.
When the tariff meaning or definition of the term "therapeutic" has been considered by the courts, they have chosen to equate it with a standard of "curing or healing." See Travenol Laboratories, Inc. v. United States, 813 F. Supp. 840, 845 (CIT 1993). Therefore, an article will only be excluded from the coverage of subheading 9817.00.96 as being therapeutic if it serves to curve or heal some malady. See also T.D. 92-77 (August 3, 1992). Microscopes used in surgery to remove a brain tumor but not cure or heal the underlying disease that caused the tumor would not appear to constitute a therapeutic article for purposes of U.S. Note 4 to subchapter XVII to chapter 98.
The issue of whether a surgical microscope is therapeutic for purposes of U.S. Note 4(b)(iii) to subchapter XVII to HTSUS chapter 98 has been addressed in previous administrative rulings. In those rulings, the microscopes under consideration were held not to be therapeutic because they were used to perform ophthalmic surgery that did not heal or curve the underlying cause of a malady but rather were used to alleviate the medical problems or manifestations associated with the malady (e.g., cataracts). See HQ 961705 (August 25, 1999) and HQ 561940 (February 7, 2001). The surgical microscope in the instant case is similar to the surgical microscopes considered in the above-mentioned administrative rulings insofar as the surgery for which the microscope is used will not heal or cure the underlying disease that causes brain tumors.
In light of the above, the OPMI Neuro/NC 4 System neurological surgical microscope is not a therapeutic article within the meaning of U.S. Note 4(b)(iii) to subchapter XVII to chapter 98. Accordingly, it is not precluded from classification in HTSUS subheading 9817.00.96.
HOLDING:
The OPMI Neuro/NC 4 System surgical neurological microscope is entitled to classification in and duty-free treatment under HTSUS subheading 9817.00.96. Accordingly, the protest should be granted in full.
In accordance with Section 3a(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, this decision should be attached to Customs Form 19, Notice of Action, and be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of this decision. Sixty days from the date of this decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and to the public via the Diskette Subscription Service, the Freedom of Information Act, and other public access channels.
Sincerely,
John A. Durant, Director
Commercial Rulings Division
Office of Regulations & Rulings
1 See section 1121 of the Omnibus Trade and Competitiveness Act of 1988 (P.L.100-418) and Presidential Proclamation 5978 (May 12, 1989).
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