CLA-2 RR:CTF:VS 563415 KSG
Port Director
U.S. Customs & Border Protection
330 2nd Avenue South
Minneapolis, Minnesota 55401
RE: Application for Further Review of Protest 3501-05-100065; zipper pouch
Dear Port Director:
This is in reply to your correspondence forwarding the Application for Further Review of Protest (AFR) 3501-05-100065 timely filed by the broker on behalf of SSI, Inc., regarding the duty–free tariff treatment of certain zipper pouches under subheading 9817.00.96 of the Harmonized Tariff System of the United States (“HTSUS”).
FACTS:
This case involves an imported zipper pouch. You have enclosed a sample case. The sample is a black pouch with a separator forming three separate pockets and two pieces of sewn elastic strip on the other side of the pouch. You state that the purpose of the zipper pouch is to hold a Starkey hearing aid and its components. The elastic bands are intended to hold a set of hearing aids and adapters. On the opposite side, there is a main pocket, which is intended to hold the operations manual and three plastic-lined pockets that hold the warranty card, spare batteries and tools to clean the hearing aids and adapters. The pouches are sold by a company that specializes in the sale of Starkey hearing aids and their components.
ISSUE:
Whether the imported zipper pouch is eligible for duty-free tariff treatment pursuant to subheading 9817.00.96, HTSUS.
LAW AND ANALYSIS:
Subheadings 9817.00.92, 9817.00.94, and 9817.00.96, HTSUS, provide for the duty-free treatment of “articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons.” 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.
Persons with hearing loss are considered handicapped under this provision. Note 4(a) enumerates the loss of hearing as a handicap.
The issue is whether the carrying cases are “specially designed or adapted” for the use or benefit of handicapped persons, which is required by the superior text in subheading 9817.0096, 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 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 carrying cases are designed for holding a hearing aid and its components, 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.
CBP has previously ruled that a carrying case for a blood glucose monitoring system was “specially designed” for the purposes of subheading 9817.00.96, HTSUS, treatment. See HRL 964765, dated June 25, 2001, HRL 561020, dated October 14, 1998.
The cases at issue are designed to hold the hearing aid and its components. 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 with the hearing aid. Further, we note that the cases are imported and sold by a company that markets articles to persons with hearing loss, and these cases would not be sold separately in a general retail store. Based on the above factors, we find that the carrying cases are “specially designed and adapted” for the use or benefit of handicapped people and are entitled to duty-free treatment under subheading 9817.00.96, HTSUS.
HOLDING:
Based on the facts presented above, the protest should be granted.
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 should be accomplished prior to mailing of this decision. Sixty days from the date of this 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,
Monika R. Brenner, Chief
Valuation & Special Programs Branch