CLA-2-39:OT:RR:NC:N4:421
Mr. John M. Peterson
Neville Peterson LLP
17 State Street, 19th Floor
New York, NY 10004
RE: The tariff classification of “UltiGuard” packaging units from China
Dear Mr. Peterson:
In your letter dated September 13, 2011, on behalf of UltiMed, Inc., you requested a tariff classification ruling.
The UltiGuard is a molded plastic container used for the packaging and disposal of medical sharps, such as syringes or pen needles for use by persons with diabetes. The UltiGuard is imported unassembled as three plastic pieces: a base container, a lid with a dial and receptacle, and a board to divide the storage and waste compartments. After importation the three pieces will be assembled together and stocked with either 100 UltiMed insulin syringes or 100 UltiMed pen needles. The UltiGuard for the syringes is approximately 9 inches in height by 6 inches in width by 4 inches in depth. The UltiGuard for the pen needles is approximately 6 inches in height by 5 inches in width by 3.5 inches in depth. The UltiGuard is designed to allow the user access to new syringes or needles, which after use can be safely disposed of in a separate compartment in the same container. The divider adjusts so that as new syringes or pen needles are used, the space for the unused components diminishes in size while the space for the used components increases in size. The UltiGuard containers are never sold empty to consumers. They are only offered for commercial sale packed with a supply of syringes or pen needles. They are disposable containers that are not designed for re-use.
The applicable subheading for the UltiGuard packaging containers will be 3923.10.0000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for articles for the conveyance or packing of goods, of plastics…boxes, cases, crates and similar articles. The rate of duty will be 3 percent ad valorem.
Regarding your claim of duty free treatment under HTSUS 9817.00.96, these items have been specially designed to serve as a convenient dispenser of the syringes or pen needles and to have a section with a slot for the user to store used needles safely for disposal.
Customs and Border Protection (CBP) has ruled several times that diabetes, per se, is a physical 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 (in terms of HTSUS, Chapter 98, Subchapter 17, U.S. Note 4). See, e.g., HRL 561020 KSG, dated October 14, 1998.
Although HTSUS, Chapter 98, Subchapter 17, U.S. Note 4-b-iii excludes therapeutic articles, CBP has held that term to apply quite narrowly for the purposes of HTSUS 9817.00.96. See Headquarters Ruling Letter 561940 KSG, dated February 7, 2001, which applied HTSUS 9817.00.96 to microscopes designed for use in eye surgeries such as retinal reattachment.
On that basis, we agree that a secondary classification will apply for these items in HTSUS 9817.00.96, as specially designed or adapted for the use or benefit of the permanently or chronically physically or mentally handicapped (except articles for the blind), free of duty and user fees (if any). Note that the requirement that the importer prepare and file a U.S. Department of Commerce form ITA-362P has been eliminated via a notice from the International Trade Administration, published in the Federal Register of June 1, 2010. Also note that this classification has no effect on any quota, visa, or restricted merchandise requirements.
Duty rates 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 World Wide Web at http://www.usitc.gov/tata/hts/.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the classification of this item in 9817.00.96, HTSUS, contact National Import Specialist James Sheridan at 646-733-3012. If you have any other questions regarding the classification of this item in 3923.10.0000, HTSUS, contact National Import Specialist Joan Mazzola at (646) 733-3023.
Sincerely,
Robert B. Swierupski
Director
National Commodity Specialist Division