CBP Ruling H035447

HQ H035447 December 7, 2011 CLA-2 OT:RR:CTF:TCM H035447 AP CATEGORY: Classification TARIFF NO.: 4202.92.30; 4202.92.90 Ms. Fariha M. Masud Attorney-in-Fact Import Brokerage Compliance Phoenix International Freight Services, Ltd. Chicago Branch 855 IL Route 83 Bensenville, IL 60106-1219 RE: Reconsideration of NY M87216; Classification of carrying cases Dear Ms. Masud: This is in response to your request, dated June 27, 2008, made on behalf of S.I. Jacobson Mfg. Co., for reconsideration of New York Ruling Letter ("NY") M87216, issued by U.S. Customs and Border Protection ("CBP") on November 15, 2006. We have reviewed NY M87216, and find it to be in error with respect to the "Intelect Legend Case P/N 27133." In NY M87216, CBP classified two different models of carrying cases used to transport electrotherapy equipment under subheading 4202.92.30, Harmonized Tariff Schedule of the United States ("HTSUS"), which provides for "travel, sports and similar bags." Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI, notice proposing to modify NY M87216 was published on November 2, 2011, in Volume 45, Number 45, of the Customs Bulletin. CBP received no comments in response to this notice. FACTS: In NY M87216, the merchandise is described as follows: The item you refer to as "Intelect Legend Case P/N 27133," is a travel bag constructed with an outer surface of man-made textile material. The bag is designed to provide storage, protection, organization, and portability to medical equipment, accessories, and personal effects during travel. It measures approximately 13'' (W) x 16'' (H) x 10'' (D). It features a three-sided zippered opening, a top carrying handle, and a removable shoulder strap. The item you refer to as "Intelect Transport Case P/N 27467" is a travel bag constructed with an outer surface of man-made textile material. The bag is designed to provide storage, protection, organization, and portability to medical equipment, accessories, and personal effects during travel. It measures approximately 17'' (W) x 12'' (H) x 14'' (D). It features a hook-and-loop secured flap closure, a top carrying handle, an adjustable shoulder strap, and several interior pockets. ISSUES: Whether the carrying cases are classified in subheading 4202.92.30, HTSUS, as "travel, sports and similar bags," or in subheading 4202.92.90, HTSUS as specialty cases. Whether the carrying cases are articles "specially designed or adapted" for the handicapped within the meaning of the Nairobi Protocol, Annex E, to the Florence Agreement, as codified in the Education, Scientific, and Cultural Materials Act of 1982, and therefore eligible for duty-free treatment under subheading 9817.00.96, HTSUS. LAW AND ANALYSIS: Classification under the HTSUS is governed by the General Rules of Interpretation ("GRIs"). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. The HTSUS provisions under consideration in this case are as follows: 4202 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, insulated food or beverage 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: Other: 4202.92 With outer surface of sheeting of plastic or of textile materials: Travel, sports and similar bags: With outer surface of textile materials: * * * 4202.92.30 Other ............. * * * Other: 4202.92.90 Other ................... Articles 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: Articles for the blind: * * * 9817.00.96 Other ........................................................ There is no dispute that the instant merchandise is classified in subheading 4202.92, HTSUS. At issue is the proper 8-digit national tariff rate level. GRI 6 provides that for legal purposes, classification of goods in the subheading of a heading shall be determined according to the terms of those subheadings and any related subheading notes, and mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. GRI 6 thus incorporates GRIs 1 through 5 in classifying goods at the subheading level. The additional U.S. notes become applicable at the 8-digit level. Concerning travel, sports and similar bags, Additional U.S. Note 1 to Chapter 42, HTSUS, notes that the expression "travel, sports and similar bags" means "goods, other than those falling in subheadings 4202.11 through 4202.39, HTSUS of a kind designed for carrying clothing and other personal effects during travel, including backpacks and shopping bags of this heading, but does not include binocular cases, camera cases, musical instruments, bottle cases and similar containers." You assert that the correct classification is subheading 4202.92.90, HTSUS, which provides for other than "travel, sports and similar bags." In support of your argument you state that the carrying cases are designed to carry specific medical equipment, with compartments specially designed to hold the various parts of the medical equipment. You claim that the articles are not designed to carry clothes or other personal effects. In HQ 957465, dated January 4, 1995, CBP determined that a carrying bag, which was imported with a device used in the treatment of a medical condition was not a specialty bag normally sold with the medical equipment. It was not shaped to the form of the medical equipment and its pockets could be used to hold personal effects. Moreover, the bag had the appearance and characteristics of an ordinary travel bag and was sold individually at retail. In contrast, in HQ 962132, dated October 26, 2000, CBP concluded that carrying cases specifically and exclusively designed to hold blood glucose monitoring system had the same characteristics and functions as other specialty cases such as musical instrument cases, camera cases, binocular cases and compact disk cases. The carrying case was double-lined with polyurethane to provide additional protection for the blood glucose monitoring system and had a sewn-on cloth label with the system's logo prominently displayed in stylized lettering. The cases were not available for purchase separately from the diabetic monitoring system. Similarly in HQ 964615 dated August 21, 2001, CBP concluded that the carrying cases, which were designed with specially fitted compartments to hold and carry small medical supplies needed by diabetics, were classified in subheading 4202.92.90, HTSUS, as "other" containers or cases and were excluded from classification as "travel, sports and similar bags" by operation of Additional U.S. Note 1 to Chapter 42, HTSUS. In the instant case, we agree that the "Intelect Legend Case P/N 27133" is specially molded to the shape of the electrotherapy system it is designed to carry. The interior of the case is padded on all sides to protect the system during transport. The padding and the sleeve cannot be removed without destroying the case. The three-sided zippered opening is designed to allow the user to use the medical equipment without removing it from the bag. The interior pockets are designed for the system's accessories. This case has the same characteristics and functions as other specialty cases such as medical instrument cases, camera cases, binocular cases and compact disk cases. Like the carrying cases in HQ 964615 dated August 21, 2001, and in HQ 962132, dated October 26, 2000, the "Intelect Legend Case P/N 27133" carrying case is exclusively designed to hold and carry specific medical equipment. It is excluded from classification as a travel, sports and similar bag by operation of Additional U.S. Note 1 to Chapter 42, HTSUS. Therefore, it is properly classified under subheading 4202.92.90, HTSUS, as a specialty case. Regarding the "Intelect Transport Case P/N 27467," we have no doubt that the carrying case is used to carry medical equipment. However, it is designed to carry personal effects as well. It is not specially shaped or fitted to hold the medical equipment. The carrying case has the appearance and characteristics of an ordinary travel bag. It is in the nature of a travel bag for carrying medical equipment and personal effects, and a reasonable consumer may purchase it to carry goods other than medical equipment. This is not a carrying case that has little or no use apart from its content. It is used to transport personal effects and medical equipment during travel and as such is classified in subheading 4202.92.30, HTSUS, as a travel, sports and similar bag. We next turn to the question whether the carrying cases are specially designed for the handicapped and as such are classified duty-free in subheading 9817.00.96, HTSUS. You claim that the carrying cases are used to carry electrotherapy systems designed to relieve pain and promote healing in those suffering from musculoskeletal disorders ("MSDs"), which can lead to a permanent or chronic physical impairment if treatment is not satisfactory. The Agreement on the Importation of Educational, Scientific and Cultural Materials, 17 U.S.T. 1835, TIAS 6129, known as the Florence Agreement provides for the duty-free treatment of certain materials including 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 to provide duty free treatment for certain articles for the use or benefit of the handicapped. The 97th Congress passed Pub. L. 97-446 to ratify the Nairobi Protocol in the United States. Subheading 9817.00.96, HTSUS covers certain articles specifically designed or adapted for the use or benefit of other physically or mentally handicapped persons. U.S. Note 4(b), subchapter XVII, Chapter 98, HTSUS, states that subheading 9817.00.96, HTSUS does not cover "(i) articles for acute or transient disability." U.S. Note 4(a), subchapter XVII, Chapter 98, HTSUS, provides 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." (emphasis added). The product at issue has to be "specially designed or adapted" for the use or benefit of handicapped persons within the meaning of the Nairobi Protocol. CBP set forth factors it would consider in making this determination. These factors include: (1) physical properties of the article itself (e.g., whether the article is easily distinguishable in design, form and use from articles useful to non-handicapped persons); (2) presence of any characteristics 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) importation by manufacturers or distributors recognized or proven to be involved in this class or kind of articles for the handicapped; (4) sale in specialty stores that serve handicapped individuals; and (5) indication at the time of importation that the article is for the handicapped. HQ H074876 dated November 19, 2009. These factors are weighed against each other to determine whether an article is specially designed or adapted for the handicapped. HQ H055815 dated May 26, 2010. In this case, the goods at issue consist of two different models of carrying cases. The "Intelect Transport Case P/N 27467" is a product that would be used by the general public and by persons who have no disability. It is not specially shaped or fitted to hold electrotherapy equipment and has the appearance of an ordinary travel bag. It is available for purchase on the Internet and is not limited to specialty stores that serve the handicapped. The description of the article does not indicate that it is for the use or benefit of handicapped individuals. Therefore, we conclude that the "Intelect Transport Case P/N 27467" was not specially designed or adapted for the use of handicapped persons. The "Intelect Legend Case P/N 27133" is specially molded to the shape of the electrotherapy unit it is designed to transport. Its interior is padded and the three-sided zippered opening allows use the electrotherapy unit without removing it from the bag. The electrotherapy unit is routinely used by medical professionals in treating patients whose impairment is "acute or transient disability" such as a moderate sports injury. Unlike in N095267 dated March 18, 2010, and NY J83008 dated April 10, 2003, this carrying case is used to transport electrotherapy equipment that is not specially designed and adapted for the benefit of persons suffering from a permanent or chronic physical impairment such as sleep apnea or diabetes. The electrotherapy equipment that the case transports is designed to stimulate injured joints and muscles to activate the body's natural processes for relieving pain, building strength, and promoting healing in those suffering from MSDs. While permanent disability is possible in chronic cases if treatment is unsatisfactory, the electrotherapy equipment is not designed exclusively for the use of handicapped persons. Therefore, the "Intelect Legend Case P/N 27133" is not specially designed or adapted to carry medical equipment that is specially designed and adapted for the use of handicapped persons. In addition, there is no evidence that the "Intelect Legend Case P/N 27133" is offered for sale in specialty stores that solely serve handicapped individuals, that it is imported by manufacturers/distributors recognized to be involved in this kind of articles for the handicapped, and that it was described as an article for the handicapped at the time of importation. This carrying case has not been described and/or marketed as a product for the handicapped. Thus, the "Intelect Legend Case P/N 27133" is within the exception for acute and transient disabilities and is not designed for the needs of persons suffering from permanent or chronic physical impairment. Accordingly, neither carrying case is classified duty free in subheading 9817.00.96, HTSUS, as equipment specially designed for the handicapped. HOLDING: Pursuant to GRI 6, the "Intelect Legend Case P/N 27133" is classifiable under subheading 4202.92.90, HTSUS, which covers specialty cases. The column one, general rate of duty is 17.6% ad valorem. The textile quota category is 670. The carrying cases are not eligible for duty-free treatment pursuant to subheading 9817.00.96, HTSUS. Duty rates and quota categories are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the Internet at www.usitc.gov. EFFECT ON OTHER RULINGS: NY M87216, dated November 15, 2006, is hereby MODIFIED. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division 7