United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 1993 HQ Rulings > HQ 0545133 - HQ 0556194 > HQ 0555965

Previous Ruling Next Ruling

HQ 555965

November 21, 1991
CLA-2 CO:R:C:S 555965 SER


TARIFF NO.: 870.67, 709.17, TSUS; 9817.00.96, HTSUSA

Area Director of Customs
110 S. 4th Street
Room 137
Minneapolis, MN 55401

RE: Protest No. 3501-0-000069, contesting denial of duty-free treatment for hearing aid programming units, under item 870.67, TSUS; Nairobi Protocol

Dear Sir:

The above-referenced protest, filed by Coleman, Hull & Van Vliet (formerly Timmer & Van Vliet), on behalf of Maico Hearing Instruments, Inc., contests the assessment of duties by your office on hearing aid programming units under item 709.17, Tariff Schedules of the United States (TSUS). The merchandise at issue was imported on July 30, 1988.


The merchandise at issue consists of programming units, known as PX8 programming units, made by the Phox company which set the frequency parameters of specific Phox company digital hearing aids. The parameters which are set by the programming units include overall hearing aid amplification as well as specific amplification settings at several frequencies to compensate for the client's particular hearing loss. In addition, if the individual's hearing loss changes, the hearing aid can be reprogrammed by the PX8 programming units to meet the new hearing requirements of an individual.

Protestant claims that these items are eligible for duty- free treatment under item 870.67, TSUS, which provides, in pertinent part, for duty-free treatment of articles specially designed or adapted for the use or benefit of the physically handicapped.


Whether the merchandise at issue constitute "parts", and, therefore, is ineligible for duty-free treatment under item 870.67, TSUS.n -2-


The Nairobi Protocol to the Agreement on the Importation of Educational, Scientific, and Cultural Materials Act of 1982, established the duty-free treatment of certain articles for the handicapped. Initially, Congress enacted this provision in the Trade and Tariff Act of 1982, and Presidential Proclamation 5201 implemented this agreement in item 960.15, Tariff Schedule of the United States (TSUS). This was a temporary provision which expired on August 11, 1985. It was re-enacted under item 870.67, TSUS, by section 1121 of the Omnibus Trade and Competitiveness Act of 1988, and made retroactive to August 12, 1985. Section 1121 of the Omnibus Trade and Competitiveness Act of 1988 and Presidential Proclamation 5978 also provided for the implementation of the Nairobi Protocol into subheadings 9817.00.92, 9817.00.94, and 9817.00.96 of the Harmonized Tariff Schedule of the United States Annotated (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.

Customs has ruled that the tariff provisions which encompass the Nairobi Protocol apply to "articles" and not "parts" of articles. See, Headquarters Ruling Letters (HRLs) 086303 dated February 13, 1990, and 087559 dated October 9, 1990. The issue of whether the programming units were "parts" arose as a result of statements by the importer that the hearing aids of which the programmers would be utilized, will not function unless they are programmed by the PX8 programming units. In addition, the programming units were stated to be used exclusively in conjunction with the Phox hearing aids. Consistent with the traditional rule for what constitutes a "part" under Customs law, these statements clearly raised the question of whether the programmers would fall within the parameters of the "parts" definition.

Counsel for the protestant argues that there is no foundation for Customs separate treatment of "parts" and "articles", and erroneously states that our basis for the separation is the case, Richards Medical Company v. United States, 720 F.Supp. 988 (CIT 1989), aff'd 910 F.2d 828 (Fed. Cir. 1990), which was discussed in an internal memorandum. The sole issue discussed in the Richards Medical case, however, was the definition of "therapeutic" within the context of the relevant tariff provisions. Furthermore, the internal memorandum (085261 dated October 31, 1989) cited by counsel in his submission involved a two-part discussion: (1) What is the definition of "therapeutic" as discussed in the Richards Medical case; and (2) Whether the tariff provisions implementing the Nairobi Protocol cover parts of articles for the handicapped. n-3-

Customs position concerning "parts" is based on the well established principle of Customs law, reiterated by the courts, "that a tariff provision which does not specifically provide for parts does not include parts." Westminster Corp. v. United States, 432 F.Supp. 1055, 1058 (1977), Glass Products, Inc. v. United States, 641 F.Supp. 813, 815 (CIT 1986), Murphy & Co. v. United States, 13 Ct.Cust. Appls. 256, T.D.41201 (1925). As the Court in Westminster further elaborated, "Congress, in enacting legislation, would have provided for parts in [a] provision had it so intended."

Whether particular merchandise is considered a "part" for tariff purposes has been the subject of voluminous judicial examination. The traditional rule in this regard is "that a 'part' of an article is something necessary to the completion of that article. It is an integral part, ..., without which the article to which it is joined could not function as such article." United States v. Willoughby Camera Stores, Inc., 21 CCPA 332, T.D. 46851 (1933), cert. denied, 292 U.S. 640, 54 S.Ct. 773, 78 L.Ed. 1492 (1933). However, since a determination regarding whether an item constitutes a part is highly fact specific, the courts have greatly modified this standard over the years.

With regard to the programming units at issue, the fact that the programming unit is used in conjunction with the hearing aids and that the hearing aid needs the programming unit to initially function does not establish that the programming unit is a "part". The courts have held that "the mere fact that two articles are designed to be used together is not alone sufficient to establish that either is a part of the other, or of their combined entity." Westfield Manufacturing Company v. U.S., 191 F.Supp. 578 (1961). In addition, the courts have stated that "[m]any ... objects, despite the fact that their usefulness is only in conjunction with other articles, retain a separateness of identity and a functional self-sufficiency which preclude their classification as parts. Furthermore, if an article possesses the characteristics of a completely finished and self contained object ...," it will not be considered a "part". Schick X-Ray Co. v. U.S. 271 F.Supp. 305 (1967). Similarly, Customs has held that a "part" must be identifiable by shape or other characteristics as an article solely or principally used as a "part". See, HRL 086835 dated April 17, 1990.

Consistent with these holdings, it is our opinion that the programming units do not constitute a "part". Although, it is used in conjunction with the hearing aids it is a completely finished and self-contained object with a recognizable separate identity. The programming units are operationally functionally self-sufficient and does not undergo any further manufacture or manipulation after importation into the United States. Inn-4-
addition, the programmer is not the type of article that is identified as an article principally used as a part. Although the hearing aid cannot function until it is programmed, once the hearing aid is programmed, the programming units are not needed for the continuous and independent functioning of the hearing aids for their intended purpose. Therefore, the Phox PX8 programming units would not be considered "parts" and would be eligible for duty-free treatment under subheading 9817.00.96, HTSUSA.


The programming units at issue are articles specially designed for the use or benefit of the physically handicapped and would not be precluded from duty-free treatment under item 870.67, TSUS, currently subheading 9817.00.96, HTSUSA, on the basis of the exclusions of parts for this special treatment. Accordingly, you should grant this protest in full. A copy of this decision should be attached to the Customs Form 19 to be returned to the protestant.


John Durant, Director

Previous Ruling Next Ruling

See also: