H330926

HQ H330926 February 2, 2024 OT:RR:CTF:VS HQ H330926 UBB CATEGORY: Classification Steve Zisser Zisser Customs Law Group, Ste 1 9355 Airway Road San Diego, CA 92154 RE: Articles for the handicapped; Subheading 9817.00.96; Transducer arrays Dear Mr. Zisser, This is in reference to one ruling letter issued to your law firm on behalf of your client, Providien Device Assembly, LLC, concerning the tariff classification of a transducer array under the Harmonized Tariff Schedule of the United States (“HTSUS”). Specifically, in New York Ruling Letter (“NY”) N319324, dated May 25, 2021, the merchandise was determined to be eligible for subheading 9817.00.96, HTSUS, treatment as an article for the handicapped. We have reviewed the ruling and find it to be in error regarding the applicability of subheading 9817.00.96, HTSUS, which provides for “articles for the handicapped.” For the reasons set forth below, we are modifying the ruling with respect to the classification under 9817.00.96, HTSUS. 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 (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed action was published on May 10, 2023, in Volume 57, Number 18, of the Customs Bulletin. One comment was received in response to this notice. FACTS: NY N319324 addresses the tariff classification of a transducer array used as a part of the Novocure Therapy Delivery System. The ruling describes the array as multiple interconnected electrical transducers designed to be adhered directly to the head or other area where an individual has been diagnosed with cancer. The ruling states that while connected to the electrical field generator within the system, the transducer arrays create an alternating field that attracts and repels charged proteins during cancer cell division. The transducers do not electrically stimulate nerves or muscles, and they do not heat tissue. The ruling further states that the Novocure system (within which the transducers are incorporated) is portable and allows the user to go about their day-to-day life while getting treatment for their disease. The introduction of the electrical field effectively inhibits tumor growth, potentially killing existing tumors. According to the ruling, in your ruling request you had noted that the arrays are specifically designed for use with the Novocure Therapy Delivery System, and that the system was intended for use by individuals who suffer from cancer, a disease that can cause chronic pain and substantial limitations to an individual’s life. NY N319324 classified the transducer arrays under subheading 8543.70.4500, HTSUS, which “Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: Other machines and apparatus: Electric synchros and transducers; flight data recorders; defrosters and demisters with electric resistors for aircraft: Other.” NY N319324 also confirmed a secondary classification for the transducer arrays under subheading 9817.00.96, HTSUS, which applies to articles and parts specially designed or adapted for the use or benefit of the permanently or chronically physically or mentally handicapped. Chapter 98, Subchapter XVII, U.S. Note 4(a), HTSUS, defines the term “blind or other physically or mentally handicapped persons” as including “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.” In the proposed modification of NY N319324, CBP discussed the issues pertaining to the eligibility of the transducer arrays under subheading 9817.00.96, HTSUS. In response to the proposed notice, CBP received one (1) comment disagreeing with the proposed modification (and the analysis of proposed HQ H330926). The commenter argues that U.S. Note 4(b)(i) (articles for acute or transient disability) and 4(b)(iii) (therapeutic and diagnostic articles) to Subchapter XVII, Chapter 98, HTSUS do not exclude the transducer arrays from classification under the subheading 9817.00.96, HTSUS. The commenter argues that cancer is not an acute or transient disability and that the transducer arrays are not a therapeutic or diagnostic article. We disagree. ISSUE: Whether the transducer arrays are eligible for duty-free treatment under subheading 9817.00.96, HTSUS, as “articles specially designed or adapted for the handicapped.” LAW AND ANALYSIS: The Nairobi Protocol to the Agreement on the Importation of Educational, Scientific and Cultural Materials of 1982, Pub. L. No. 97-446, 96 Stat. 2329, 2346 (1983) established the duty-free treatment for certain articles for the handicapped. Presidential Proclamation 5978 and Section 1121 of the Omnibus Trade and Competitiveness Act of 1988, provided for the implementation of the Nairobi Protocol into subheadings 9817.00.92, 9817.00.94, and 9817.00.96, HTSUS. Subheading 9817.00.96, HTSUS, covers: “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.” In Sigvaris, Inc. v. United States, 227 F. Supp 3d 1327, 1336 (CIT 2017), aff’d, 899 F.3d 1308 (Fed. Cir. 2018), the U.S. Court of International Trade (“CIT”) explained that: The term “specially” is synonymous with “particularly,” which is defined as “to an extent greater than in other cases or towards others.” Webster’s Third New International Dictionary 1647, 2186 (unabr. 2002). 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 Third New International Dictionary 612 (unabr. 2002). Subheading 9817.00.96, HTSUS, 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. Thus, eligibility within subheading 9817.00.96, HTSUS, depends on whether the article is “specially designed or adapted for the use or benefit of the blind or physically and mentally handicapped persons,” and whether it falls within any of the enumerated exclusions under U.S. Note 4(b), Subchapter XVII, Chapter 98, HTSUS. The subject transducer arrays are specially designed for use with the Novocure Therapy Delivery System and are intended for use by individuals who suffer from cancer. While we recognize that cancer can cause chronic pain and substantial limitations to an individual’s life activities, we do not agree that it constitutes a permanent or chronic physical or mental impairment, as described by Chapter 98, Subchapter XVII, U.S. Note 4(a), HTSUS. Rather, as a disease that is often treatable, disabilities resulting from the illness fit within the definition of “acute or transient disabilt[ies],” and as such, articles that are designed for acute or transient disability are specifically excluded from subheading 9817.00.96, HTSUS. U.S. Note 4(b)(i), Subchapter XVII, Chapter 98, HTSUS. Furthermore, materials submitted with the ruling request note that the Novocure Therapy Delivery System (also referred to as the Tumor Treating Field (TTF) Therapy Delivery System) is specially designed to treat and manage the cancerous tumors, and the description of the operation of the Novocure Therapy Delivery System indicates that it is used to treat the disease. As such, the transducer arrays are also excluded from classification under 98

The Nairobi Protocol to the Agreement on the Importation of Educational, Scientific and Cultural Materials of 1982, Pub. L. No. 97-446, 96 Stat. 2329, 2346 (1983) established the duty-free treatment for certain articles for the handicapped. Presidential Proclamation 5978 and Section 1121 of the Omnibus Trade and Competitiveness Act of 1988, provided for the implementation of the Nairobi Protocol into subheadings 9817.00.92, 9817.00.94, and 9817.00.96, HTSUS.Subheading 9817.00.96, HTSUS, covers: “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.” In Sigvaris, Inc. v. United States, 227 F. Supp 3d 1327, 1336 (CIT 2017), aff’d, 899 F.3d 1308 (Fed. Cir. 2018), the U.S. Court of International Trade (“CIT”) explained that:The term “specially” is synonymous with “particularly,” which is defined as “to an extent greater than in other cases or towards others.” Webster’s Third New International Dictionary 1647, 2186 (unabr. 2002). 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 Third New International Dictionary 612 (unabr. 2002).Subheading 9817.00.96, HTSUS, 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. Thus, eligibility within subheading 9817.00.96, HTSUS, depends on whether the article is “specially designed or adapted for the use or benefit of the blind or physically and mentally handicapped persons,” and whether it falls within any of the enumera