OT:RR:CTF:VS H305925 AP

Mr. Jim Sides
Totex Manufacturing
3050 Lomita Blvd.
Torrance, CA 90505

RE: Subheading 9817.00.96, HTSUS; Battery core packs for a cochlear implant system from China

Dear Mr. Sides:

This is in response to your September 13, 2019 ruling request on the applicability of subheading 9817.00.96, Harmonized Tariff Schedule of the United States ("HTSUS"), to battery core packs used to power the sound processor for a cochlear implant system.

FACTS:

Totex Manufacturing designs and manufactures battery packs and chargers.[1] The four battery core packs[2] at issue are components of the sound processor of a cochlear implant system, which is surgically implanted in people who cannot hear with hearing aids. The cochlear implant system consists of a microphone, sound processor, headpiece, and an electronic array, which work together to bypass the damaged part of the inner ear and restore hearing by sending sound directly to the hearing nerve.[3] The battery core pack powers the sound processor.

Each core pack consists of a lithium ion cell attached to a safety circuit. The lithium ion cell stores and provides power. The size of the cell included in each core pack depends on the model number of the battery pack. After importation, the core pack is enclosed in a plastic housing to form the complete battery, which is attached to the cochlear implant interface to externally power the sound processor of the implant.

ISSUE:

Whether the instant battery core packs are eligible for duty-free treatment under subheading 9817.00.96, HTSUS, as "[a]rticles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons."

LAW AND ANALYSIS:

Subheading 9817.00.96, HTSUS, came into effect in the United States through a series of international agreements and acts of Congress. Its basis is in the Agreement on the Importation of Educational, Scientific and Cultural Materials, opened for signature Nov. 22, 1950, 17 U.S.T. 1835, 131 U.N.T.S. 25, or Florence Agreement, drafted by the United Nations Educational, Scientific, and Cultural Organization ("UNESCO") in July 1950. In 1976, UNESCO adopted the Nairobi Protocol to the Florence Agreement, which expanded the scope of products to include materials specially designed for handicapped persons. See Protocol to the Agreement on the Importation of Educational, Scientific, or Cultural Materials, opened for signature 1 Mar. 1977, 1259 U.N.T.S. 3. Congress ratified the Nairobi Protocol and enacted it into U.S. law in 1983. Pub. L. 97-446, 161, 96 Stat. 2329, 2346 (1983). Section 1121 of the Omnibus Trade and Competitiveness Act of 1988 (Pub. L. No. 100-418, 102 Stat. 1107) and Presidential Proclamation 5978 implemented the Nairobi Protocol by inserting permanent provisions-specifically, subheadings 9817.00.92, 9817.00.94, and 9817.00.96-into the HTSUS.

Subheading 9817.00.96, HTSUS, provides for: "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 . . . Other." As the language of this provision indicates, classification within subheading 9817.00.96, HTSUS, depends on whether the article in question is "specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons," and whether it falls within any of the enumerated exclusions. See U.S. Note 4(b), Subchapter XVII, Chapter 98, HTSUS.[4]

U.S. Note 4(a), Subchapter XVII, Chapter 98, HTSUS, states:

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.

(emphasis added).

Hearing is listed in U.S. Note 4(a) as a major life activity. Persons who are hearing-impaired are considered handicapped within the meaning of the note.

The issue in the instant case is whether the battery packs are "specially designed or adapted" for use in articles that are "specifically designed or adapted" for the use or benefit of handicapped persons, which is required under subheading 9817.00.96, HTSUS. The language of subheading 9817.00.96, HTSUS, states that the provision provides for "articles specially designed or adapted" for the use or benefit of the physically handicapped. The design and construction of an article may be indicative of whether it is specially designed or adapted for the use or benefit of the handicapped. The HTSUS does not establish a clear definition of what constitutes "specially designed or adapted for the use or benefit" of handicapped persons. In the absence of a clear definition, the Court of the International Trade ("CIT") stated that it might rely upon its own understanding of the terms or consult dictionaries and other reliable information. See Danze, Inc. v. United States, 319 F. Supp. 3d 1312 (CIT 2018). In analyzing this same provision in Sigvaris, 227 F. Supp. 3d at 1336, the CIT construed these operative words as follows:

The term "specially" is synonymous with "particularly," which is defined as "to an extent greater than in other cases or towards others." [Webster's] at 1647, 2186 . . . The dictionary definition for "designed" is something that is "done, performed, or made with purpose and intent often despite an appearance of being accidental, spontaneous, or natural." [Webster's] at 612 . . . .

The court in Danze, 319 F. Supp. 3d at 1320, stated:

"[A]rticles specially designed for handicapped persons must be made with the specific purpose and intent to be used by or benefit handicapped persons rather than the general public." Sigvaris, 227 F. Supp. 3d at 1336. Any adaptation or modification to an article to render it for use or benefit by handicapped persons must be significant.

The cochlear implant system is "specifically designed" for individuals with profound hearing loss. It is surgically implanted in people who cannot hear with hearing aid and is not for use by the general public. The battery packs have a unique size and shape, and are specifically designed to work exclusively with the cochlear implant system for hearing-impaired persons. The battery packs are sold and marketed to be used as batteries for cochlear implants. In Headquarters Ruling Letter ("HQ") 562812, dated March 30, 2004, U.S. Customs and Border Protection ("CBP") classified hearing aid parts designed for hearing aids and marketed to hearing-impaired persons as eligible for duty-free treatment under subheading 9817.00.96, HTSUS. CBP found that if an article is dedicated to a sole use for the handicapped, it satisfies the "specially designed or adapted" requirement.

In addition, in HQ 561223, dated March 26, 1999, CBP determined that air cell batteries designed for use in hearing aid devices were classifiable in subheading 9817.00.96, HTSUS, because they were designed for use with the hearing aids, which were themselves articles specially designed for use of physically handicapped persons and any use by the general public was "so improbable that it would be fugitive."

In New York Ruling Letter ("NY") N305828, dated September 5, 2019, a printed circuit board assembly ("PCBA"), which was used to control the charging of batteries and to provide overvoltage, undervoltage, and overcurrent charge protection for the Advanced Bionics Cochlear Implant System, was eligible for duty-free treatment under subheading 9817.00.96, HTSUS. CBP found that the PCBA was "specifically designed to work exclusively with a cochlear implant system" that was intended for use by individuals who suffer from profound hearing loss.

Similarly to the hearing aid parts in HQ 562812, HQ 561223, and NY N305828, the instant battery packs are specifically designed and adapted for use in the hearing aid devices. The battery packs are parts of the sound processor of the cochlear implants, which are designed for individuals with profound hearing loss, and are not for use by the general public.

Accordingly, we find that the battery packs for use in the cochlear implants are entitled to duty-free treatment under subheading 9817.00.96, HTSUS.

HOLDING:

The battery packs for use in the cochlear implants for hearing-impaired persons are eligible for duty-free treatment under subheading 9817.00.96, HTSUS.

Please note that 19 C.F.R. 177.9(b)(1) provides that "[e]ach ruling letter is issued on the assumption that all of the information furnished in connection with the ruling request and incorporated in the ruling letter, either directly, by reference, or by implication, is accurate and complete in every material respect. The application of a ruling letter by a Customs Service field office to the transaction to which it is purported to relate is subject to the verification of the facts incorporated in the ruling letter, a comparison of the transaction described therein to the actual transaction, and the satisfaction of any conditions on which the ruling was based."

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.

Sincerely,

Monika R. Brenner, Chief
Valuation and Special Programs Branch
-----------------------
[1] See Totex USA, About Us, http://totexusa.com/totexmfg.com/about/index.html (last visited Oct. 16, 2019).
[2] Advanced Bionics Naida model numbers U30426R01, U30427R01 and U30428R01, and Advanced Bionics Coguaro model number U30934R02.
[3] See Advanced Bionics, What is a Cochlear Implant and How Does it Work?, https://advancedbionics.com/us/en/home/cochlear-implants-for-you/what-is-a-cochlear-implant-how-does-it-work.html (last visited Oct. 16, 2019).
[4] Subheading 9817.00.96 excludes "(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(b), Subchapter XVII, Chapter 98, HTSUS. The instant battery core packs are none of these.