# HQ 962132

October 26, 2000

CLA-2 RR:CR:TE 962132 SS

CATEGORY: Classification

TARIFF NO.: 4202.92.9025, 9817.00.96

Port Director

United States Customs Service

49 Pavilion Avenue

Providence, RI 02905

Re: Application for Further Review of Protest No. 0502-98-100032;
Classification of a Carrying Case for a Blood Glucose Monitoring System;
Diabetes; Nairobi Protocol; Subheading 9817.00.96, HTSUSA; Articles
Specially Designed or Adapted for the Use or Benefit of the Blind or
Other Physically or Mentally Handicapped; Heading 4202, HTSUSA;
Binocular Cases, Camera Cases, Musical Instrument Cases and Similar
Containers; Not Heading 9027, HTSUSA; Not Accessories of Instruments and
Apparatus for Physical or Chemical Analysis

Dear Sir:

This is in response to the Application for Further Review of Protest
Number 0502-98-100032, timely filed by Meeks & Sheppard, on behalf of
the importer Medport, Inc. ("Protestant"), on June 25, 1998, contesting
the classification of a carrying case for a blood glucose monitoring
system under subheading 4202.32.9550 of the Harmonized Tariff Schedule
of the United States Annotated (HTSUSA).[^1] A sample of the carrying
case and "Owner's Booklet" for the compact blood glucose monitoring
system was forwarded with the Application for Further Review.

FACTS:

The article under protest is a carrying case for a blood glucose
monitoring system identified by the Protestant as a "Lifescan Meter
Case." The Protestant submits that the product was specifically and
exclusively designed for Lifescan, Inc. ("Lifescan"), for use as an
accessory with Lifescan's "One Touch Fast Take Compact Blood Glucose
Monitoring System" ("Fast Take System"). The Fast Take System is sold
exclusively by Lifescan in kits that include: a meter; strips; control
solution; Penlet II automatic blood sampler; sterile lancets; owner's
booklet; Lifescan meter case; reference guide; warranty card; logbook;
tele-library card and two batteries. The kits are designed and adapted
for use by persons suffering from diabetes. The Fast Take System is used
by a diabetic person for testing blood glucose levels. The carrying case
can only be purchased as part of the Fast Take System and is not sold
separately.

The carrying case is manufactured of 100 percent man-made textile
materials. The carrying case measures 6-1/2 inches in width by 5-1/4
inches in length in the "open" position and 3-1/2 inches in width by
5-1/4 inches in length in the "closed" or "folded" position. The
exterior is black nylon with double polyurethane coating. One side of
the carrying case features a full-width zippered mesh pocket divided
into two compartments. One compartment is designed to hold the Fast Take
System meter. The other compartment will hold the test strips and
control solution. The Protestant submits that the mesh material was
specifically selected for this product because the meter stored in the
mesh compartment has a large display lens susceptible to scratching if
not protected. Abrasion tests conducted by the Protestant indicate that
the mesh material protects the meter's display lens from scratching. To
the left and right of the mesh material are hook and loop closures that
enable the carrying case to be folded in half for convenient carrying.
The "fold" line is double stitched to provide reinforced strength and
protection to the lens. The reverse side of the carrying case consists
of a pocket with a flap and hook and loop closure. The flapped pocket is
designed to hold the automatic blood sampler. The same side also
features a belt loop allowing the folded case to be conveniently
carried. Between the mesh compartment and the flapped pocket, the
carrying case is double-lined with polyurethane which provides
additional protection for the meter. The carrying case has a sewn-on
cloth label with the "Lifescan" logo prominently displayed in stylized
lettering. The carrying case is sized to accommodate safe and protective
storage of the Fast Take System.

Protestant entered two shipments of the carrying cases on May 13, 1997,
and June 26, 1997, under subheading 4202.32.9550, HTSUSA, which
provides, in part, for articles normally carried in the pocket or in the
handbag with outer surface of textile materials, with a duty rate of
19.3 percent. On March 27, 1998, and May 15, 1998, the Port liquidated
the merchandise under subheading 4202.32.9550, HTSUSA. On June 15, 1998,
Protestant filed a protest against the classification, liquidation and
tariff treatment and made application for further review claiming that
the merchandise should be classified under subheading 9817.00.96,
HTSUSA, which provides, in part, for articles specially designed or
adapted for the use or benefit of physically handicapped persons, with a
free rate of duty. In the alternative, Protestant claimed that the
merchandise should be classified under headings 9027 or 9018, HTSUSA, as
an accessory. Protestant filed a supplemental protest on July 23, 1998.

ISSUE:

I. Is the carrying case for a blood glucose monitoring system properly
classifiable under heading 4202, HTSUSA, as a similar container to the
*eo nomine* exemplars of the heading or under heading 9027, HTSUSA, as
an accessory to instruments and apparatus for physical or chemical
analysis?

II\. Is the carrying case for a blood glucose monitoring system eligible
for duty-free treatment under subheading 9817.00.96, HTSUSA?

LAW AND ANALYSIS:

I.  [Heading 4202, HTSUSA]{.underline}

Classification of goods under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA) is governed by the General Rules of
Interpretation (GRI). GRI 1 provides that classification shall be
determined according to the terms of the headings of the tariff schedule
and any relative section or chapter notes. In the event that the goods
cannot be classified solely on the basis of GRI 1, and if the headings
and legal notes do not otherwise require, the remaining GRI may then be
applied. The Explanatory Notes (EN) to the Harmonized Commodity
Description and Coding System, which represent the official
interpretation of the tariff at the international level, facilitate
classification under the HTSUSA by offering guidance in understanding
the scope of the headings and GRI.

Heading 9027, HTSUSA, provides for:

> Instruments and apparatus for physical or chemical analysis (for
> example, polarimeters, refractometers, spectrometers, gas or smoke
> analysis apparatus); instruments and apparatus for measuring or
> checking viscosity, porosity, expansion, surface tension or the like;
> instruments and apparatus for measuring or
>
> checking quantities of heat, sound or light (including exposure
> meters); microtomes; parts and accessories thereof

Note 2 to Chapter 90, HTSUSA, states, in part, that parts and
accessories for machines, apparatus, instruments or articles of Chapter
90 are to be classified according to the following rules:

(a) Parts and accessories which are goods included in any of the
    headings of this chapter or of chapter 84, 85 or 91 (other than
    heading 8485, 8548 or 9033) are in all cases to be classified in
    their respective headings;

(b) Other parts and accessories, if suitable for use solely or
    principally with a particular kind of machine, instrument or
    apparatus, or with a number of machines, instruments or apparatus of
    the same heading (including a machine, instrument or apparatus of
    heading 9010, 9013 or 9031) are to be classified with the machines,
    instruments or apparatus of that kind;

(c) All other parts and accessories are to be classified in heading
    9033.

> In Headquarters Ruling Letter (HQ) 962581, dated February 23, 2000,
> Customs classified a similar carrying case for a diabetes monitoring
> system under heading 9027, HTSUSA. Customs stated that the diabetic
> monitoring system was described by heading 9027, HTSUSA, and, relying
> on Chapter Note 2, Chapter 90, HTSUSA, Customs classified the carrying
> case as an accessory under subheading 9027.90.54, HTSUSA. Noting that
> the term "accessory" is generally understood to mean an article of
> secondary importance which contributes to the effectiveness of a
> principal article, Customs stated that the carrying case qualified as
> an accessory because it facilitated the use and handling of the
> system's components. Similarly, the instant carrying case facilitates
> the use and handling of the monitoring system because, in the event of
> an emergency, the organization of the system allows the user to find
> needed components quickly.

However, prior to HQ 962581, Customs had consistently classified similar
articles, often described as "diabetic carrying cases" under heading
4202, HTSUSA. See New York Ruling Letter (NY) E84197, dated August 16,
1999; NY E81946, dated May 28, 1999; Port Ruling Letter (PD) C88022,
June 4, 1998; HQ 958048, dated November 6, 1996; HQ 958000, dated

October 20, 1995; NY 809003, dated April 26, 1995; and NY 804966, dated
December 19, 1994.

Heading 4202, HTSUSA, provides for:

> 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, 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.

The EN to heading 4202, HTSUSA, state that the heading only covers the
specifically named containers and similar containers. Applying the
principle of statutory construction known as *ejusdem generis*, which
means "of the same kind," Customs finds that the instant carrying case
is covered by the term "similar containers."

Under the rule of *ejusdem generis*, where an enumeration of specific
things is followed by a general word or phrase, the general word or
phrase is held to refer to things of the same kind as those specified.
With respect to the broad reach of the residual provision for "similar
containers" in heading 4202, HTSUSA, the courts have found that the rule
of *ejusdem generis* requires that the imported merchandise possess the
essential characteristices or purpose that unite the articles enumerated
in order to be classified under the general term. [Totes, Inc. v. United
States]{.underline}, 18 Ct. Int'l Trade 919, 865 F. Supp. 867, 871
(1994), *aff'd*, 69 F.3d 495 (1995). In [Totes]{.underline}, the Court
of Appeals for the Federal Circuit (CAFC) affirmed the Court of
International Trade's (CIT) determination that the "essential
characteristics and purpose of Heading 4202 exemplars are. . . to
organize, store, protect and carry various items." Applying the
rationale set forth in [Totes]{.underline}, Customs finds that the
instant carrying case serves the purposes of organizing, storing,
protecting and carrying various blood glucose monitoring system items
and is therefore classified under heading 4202, HTSUSA, as a "similar
container."

The conflict between the "similar containers" provision of heading 4202,
HTSUSA, and provisions for "accessories" was also resolved in the
[Totes]{.underline} case. The CAFC held that the "similar container"
provision of heading 4202, HTSUSA, more specifically described a trunk
organizer than the competing provision for automobile accessories.
[Id]{.underline}. 69 F.3d at 499. Although the trunk organizer was
*prima facie* classifiable under the provision for similar containers
and that for accessories for motor vehicles, the court stated that the
competing provisions were not equal. [Id]{.underline}. The court found
that "containers," which essentially have the one principal function of
containing, even though encompassing a wide variety of items, is a more
specific term than "accessory" which can include a wide variety of items
having many different functions. [Id]{.underline}. Applying this
rationale to the instant case, we find that the carrying case is more
specifically described by the provision for "similar containers" of
heading 4202, HTSUSA, than the competing provision for accessories of
instruments for physical or chemical analysis.

One distinguishable aspect of the [Totes]{.underline} case must be
addressed. In [Totes]{.underline}, the applicable EN stated that
accessories covered more specifically by another heading were excluded
from the section. Furthermore, the EN listed tool bags of heading 4202,
HTSUSA, as an example of an accessory covered more specifically by
heading 4202, HTSUSA. In contrast, Note 2 to Chapter 90, HTSUSA, and the
EN applicable to the present case do not contain similar language.
However, Customs notes that the decision in the [Totes]{.underline} case
was not based on the EN. The EN were merely cited in support of the
court's decision that the provision for similar containers was more
specific than the provision for accessories.

Cases for instruments of Chapter 90, HTSUSA, are not classifiable under
the provision for accessories. Camera cases and binocular cases are *eo
nomine* exemplars of heading 4202, HTSUSA, and are classified in heading
4202, HTSUSA, despite the fact that they are also accessories to cameras
and binoculars classified in Chapter 90, HTSUSA. Customs believes that
heading 4202, HTSUSA, would not specifically name these cases if the
intent was to apply Note 2 to Chapter 90, HTSUSA, and classify cases as
accessories to the goods of Chapter 90, HTSUSA. Customs is unable to
distinguish the blood glucose monitoring system carrying case from the
eo nomine exemplars and "similar containers" of heading 4202, HTSUSA.
Thus, the instant carrying case is properly classified with other
similar specially shaped or fitted cases of heading 4202, HTSUSA.

With respect to classification at the subheading level, the article was
classified at the time of entry under subheading 4202.32, HTSUSA, as an
article of a kind normally carried in the pocket or in the handbag.
However, the instant carrying case is not similar to the exemplars
listed in the EN for subheading 4202.32, HTSUSA, such as wallets,
key-cases and cigarette cases. Although it is of a size similar to the
goods of subheading 4202.32, HTSUSA, Customs finds that its
characteristics and functions are similar to other specialty cases such
as musical instrument cases, camera cases, binocular cases and compact
disk cases which are classified under subheading 4202.92, HTSUSA.
Accordingly, Customs finds that the carrying case is classified under
subheading 4202.92.90, HTSUSA, as an "other" container or case.

Customs finds that the instant carrying case is not classifiable under
heading 9027, HTSUSA. To the extent that rulings exist which are
inconsistent with the analysis set forth in this ruling, please be
advised that Customs is in the process of reviewing those ruling to
determine whether they should be the subject of a proposed notice of
revocation or modification.

II\. [Heading 9817, HTSUSA]{.underline}

The Agreement on the Importation of Educational, Scientific and Cultural
Materials, known as the Florence Agreement, is an international
agreement drafted by the United Nations Educational, Scientific, and
Cultural Organization (UNESCO) and adopted by it in Florence, Italy, in
July 1950 (17 UST 1835; TIAS 6129). It provides for duty‑free treatment
and the reduction of trade obstacles for imports of educational,
scientific, and cultural materials in the interest of facilitating the
international free flow of ideas and information. Materials falling
within the coverage of the Florence Agreement include: books,
publications and documents; works of art and collector's pieces; visual
and auditory materials; 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 primarily by expanding duty‑free
treatment for certain articles for the use or benefit of the handicapped
in addition to providing duty‑free treatment for articles for the blind.
The 97th Congress passed Pub. L. 97‑446 to ratify the Nairobi Protocol
in the United States. The Senate stated that one of the goals of this
law was to benefit the handicapped and show U.S. support for the rights
of the handicapped. However, the Senate stated that a modification or
adaptation must be significant so as to clearly render the article for
use by handicapped persons. S. Rep. No. 97‑564, 97th Cong. 2nd Sess.
(1982).

Section 1121 of the Omnibus Trade and Competitiveness Act of 1988 and
Presidential Proclamation 5978 provided for the implementation of the
Nairobi Protocol by inserting permanent provisions, subheadings
9817.00.92, 9817.00.94, and 9817.00.96, into the HTSUSA. These tariff
provisions specifically state that "articles specially designed or
adapted for

the use or benefit of the blind or other physically or mentally
handicapped persons" are eligible for duty‑free treatment.

U.S. Note 4(a), chapter 98, subchapter XVII, HTSUSA ("U.S. Note 4(a)"),
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, subchapter XVII, HTSUSA ("U.S. Note 4(b)"),
states that subheadings 9817.00.92, 9817.00.94 and 9817.00.96, HTSUSA,
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.

Section 3 of the Americans with Disabilities Act of 1990 ("ADA"), 42
U.S.C. 12102(2) defines a disability as "a physical or mental impairment
that substantially limits one or more of the major life activities of
such individual." Because this definition uses language similar to the
definition set forth above in U.S. Note 4(a) it is instructive to
examine the case law under the ADA. The federal courts have held that
diabetes substantially limits one or more of the major life activities
of an individual. See [Canon v. Clark]{.underline}, 883 F. Supp. 718
(S.D. Fla. 1995), [Sarsycki v. United Parcel Service]{.underline}, 862
F.

Supp. 336 (W.D. Okla. 1994), and [EEOC v. The Chrysler
Corporation]{.underline}, 917 F. Supp. 1164 (E.D. Mich. 1996).

As discussed in the cases above, people with diabetes are limited in
their ability to perform a broad range of jobs because they must be able
to monitor their blood sugar, inject insulin if prescribed, and have
work restrictions due to excessive urination, possible nausea, dizziness
and fainting. This interferes with working‑‑a major life activity.
Therefore, persons with diabetes suffer from a permanent or chronic
physical impairment which substantially limits a major life activity and
therefore, are considered physically handicapped persons under U.S. Note
4(a). We note that Customs has previously ruled that persons with
diabetes are considered physically handicapped within the meaning of
U.S. Note 4(a). See HQ 561020, dated October 14, 1998 and HQ 561283,
dated August 26, 1999.

Finding that diabetes is considered a physical handicap, however, does
not end our inquiry. The superior text in subheading 9817.00.96, HTSUSA,
requires that the carrying case be specially designed or adapted for the
use or benefit of handicapped persons. The meaning of the phrase
"specially designed or adapted" has been decided on a case-by-case
basis. In HQ 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.]{.underline}, 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 be
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 indicate that these
articles are for the handicapped.

In HQ 561020 (cited above), Customs classified three styles of diabetes
organizers also imported by Medport, Inc., the Protestant in this case.
The diabetes organizers had specialized features such as compartments
for meters, separate cool compartments for maintaining insulin at the
proper temperature, compartments with elastic straps to hold syringes
and insulin bottles, items to measure temperature, and detachable
medical waste pouches. The "wallet organizer", "daily organizer" and
"travel organizer" were zippered, compartmentalized cases designed to
hold varying amounts of insulin and related supplies. Customs examined
the samples and literature prepared by Medport, Inc. and found that the
diabetes organizers had distinctive design features and characteristics
which easily distinguished them from articles useful to the general
public so that any use thereof by the general public would be so
improbable that it would be fugitive. Customs noted that Medport, Inc.
specializes in the health care area and specifically, with articles for
people with diabetes. Customs found that the diabetes organizers were
specially designed or adapted for the use or benefit of handicapped
persons and were entitled to duty‑free treatment under subheading
9817.00.96, HTSUSA. For an additional ruling in support of this position
see HQ 561283 (cited above).

The samples and literature prepared by Medport support the assertion
that the "Lifescan Meter Case" is an article specially designed for the
use of physically handicapped persons. The "Lifescan Meter Case" has
distinctive design features and characteristics which make it
distinguishable from articles useful to the general public. The carrying
case is sold exclusively with the diabetic meters as part of the "One
Touch Fast Take Compact Blood Glucose Monitoring System." The Protestant
states that the carrying case is never sold separately. The carrying
case is manufactured to specifications provided by Lifescan which
ensures a unique fit. The case has a mesh compartment that was
specifically selected and tested so that it will not scratch the
diabetic meter's lenses. The monitoring system is specifically designed
and adapted for use by diabetics to test their blood glucose levels.
Selling the carrying case with the system ensures that the cases will be
used by those who use the meters, [i.e.]{.underline}, diabetics. It is
unlikely that a person not suffering from diabetes would purchase the
system in order to use the carrying case. 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 in
the blood glucose monitoring system. Lastly, we note that the Protestant
in this case is Medport, Inc., a company that specializes in the health
care/disabilities market. See HQ 561020 (cited above). Based on the
above factors, we find that the carrying case is "specially designed and
adapted" for the use or benefit of handicapped people and is entitled to
duty-free treatment under subheading 9817.00.96, HTSUSA.

As stated previously, U.S. Note 4(b), subchapter XVII, Chapter 98,
HTSUSA, establishes certain limitations on the classification of
products under subheading 9817.00.96, HTSUSA. Specifically, diagnostic
articles are excluded from the subheading. While the carrying case at
issue is used to transport a collection of articles used by patients to
monitor blood glucose level for the purpose of ascertaining whether
treatment (i.e., an injection of insulin) is appropriate at any given
time, it is not used as part of an examination of symptoms to determine
the presence of a disease or ailment, and is therefore not precluded
from duty-free treatment under U.S. Note 4(b) as a "diagnostic article."
See HQ 561283 (cited above).

HOLDING:

In 1997, the "Lifescan Meter Case" was classifiable under subheading
4202.92.9025, HTSUSA. The general column one duty rate was 19.3% *ad
valorem* and the applicable textile category designation was 670.

However, the "Lifescan Meter Case" is eligible for duty-free treatment
under subheading 9817.00.96, HTSUSA, the provision for "\[a\]rticles
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". The general column one duty rate is "Free." Visa and
quota restrictions will still be applicable.

The protest should be ALLOWED. 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 must be accomplished prior to mailing the decision.

Sixty days from the date of the 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,
>
> John Durant, Director
>
> Commercial Rulings Division

[^1]: The protest submission also references Protest Number
    0502-98-100034, which has been suspended at the port.