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HQ 559185

December 15, 1997

CLA-2 RR:CR:SM 559185 KSG


TARIFF NO.: 9817.00.96

Area Port Director
U.S. Customs Service
Western Great Lakes Area
Minneapolis, Minnesota

RE: Application for Further Review of Protest No. 3501-92-100291; Nairobi Protocol; article specifically designed or adapted for the use or benefit of the blind or other physically or mentally handicapped; subheading 9817.00.96; therapeutic; part;

Dear Sir:

This is in reference to a protest and application for further review filed by Starkey Laboratories, Inc., contesting the denial of the duty free exemption set forth at subheading 9817.00.96, of the Harmonized Tariff Schedule of the United States ("HTSUS"), to a hearing aid dispensing system.


The imported article is a hearing aid dispensing system, portaREM-2000 Digital, used for selecting, testing, and fitting hearing aids. This equipment is used by hearing health-care professionals in a office, clinic, or hospital to determine if an individual's hearing aid is functioning properly and in its correct frequency. This can be done in two ways. First, the individual's hearing aid can be inserted into a test chamber within the machine. The second method involves inserting a very small probe attached to the portaREM-2000 into the individual's ear channel while he or she is wearing the hearing aid. The portaREM-2000 then measures and records the hearing aid's performance while it is actually in the ear. The portaREM-2000 can also be used to determine the appropriate hearing aid circuitry for the individual's particular needs after a hearing aid type is selected by the patient. The country of origin of the imported article is Denmark. The imported article was entered on April 8, 1992. The protest was timely filed on October 20, 1992.


Whether the hearing aid dispensing system is eligible for duty-free treatment under subheading 9817.00.96, HTSUS?


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. 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 subheadings 9817.00.92, 9817.00.94, and 9817.00.96 into the HTSUS. These tariff provisions specifically state that "articles specifically 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, HTSUS, 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. Individuals who are hearing impaired are encompassed by this Note.

U.S. Note 4(b), chapter 98, HTSUS, states that subheadings 9817.00.92, 9817.00.94 and 9817.00.96 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.

The first issue presented is whether the portaREM-2000 is a therapeutic article within the meaning of U.S. Note 4(b) and thereby excluded from duty-free treatment under subheading 9817.00.96, HTSUS. In Travenol Laboratories, Inc. v. U.S., 813 F. Supp. 840 (CIT 1993), the court held that devices used with a dialysis machine were not therapeutic and therefore, the sets were eligible for duty-free treatment under subheading 9817.00.96, HTSUS. The court found that kidney dialysis is not curative and curing or healing is the standard with regard to the tariff meaning of the term "therapeutic". The court relied on a prior case, Richards Medical Co. v. U.S., 720 F. Supp. 998 (CIT 1989), which involved an imported hip prosthesis and separately packaged instruments. The court stated that Congress intended to limit the duty-free treatment only to those articles which help handicapped persons to adapt to their handicapped condition. The court held that only articles used to heal or cure disease are considered "therapeutic" within the meaning of the provision. The court also held that the fact that the handicapped persons themselves do not use these instruments or that they do not remain in the body of the person does not preclude classification of the instruments under this provision (item 960.15, TSUS).

The portaREM-2000 is similar to both the articles imported in Travanol and Richards Medical Co. in that the hearing aid dispensing system will not heal or cure people who are hearing impaired. Rather, the hearing aid dispensing system is used to test hearing aids as well as to fit people for hearing aids to help the hearing impaired person adapt to his/ her handicap. Therefore, we find that the portaREM-2000 is not a therapeutic article. Accordingly, the portaREM-2000 is not precluded from subheading 9817.00.96, HTSUS, treatment by U.S. Note 4(b) of Chapter 98, HTSUS.

The second issue that must be addressed is whether the portaREM-2000 is a part. This issue is covered in T.D. 92-77, issued August 3, 1992. The T.D. states that the exclusion of parts under the Nairobi Protocol is based on the well established principle of Customs law that a tariff provision which does not specifically provide for parts does not include parts. We note that subsequent to the filing of this protest, Congress amended this provision so that for goods entered on or after January 1, 1995, parts and accessories are specifically provided for.

The traditional rule is that a part' of an article is something necessary to the completion of that article. The T.D. cited U.S. v. Willoughby Camera Stores, Inc., 21 CCPA 332 (1933), Westfield Manufacturing Company v. U.S., 191 F. Supp. 578 (1961), and Schick X-Ray Co. v. U.S., 271 F. Supp. 3305 (1967). These cases 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. An article possessed of the characteristics of a completely finished and self contained object is not considered a part.

In HRL 087559, dated October 9, 1990, Customs held that resistors, microphones, and potentiometers used in hearing aids were "parts" and therefore, precluded from duty-free treatment under the Nairobi Protocol. In HRL 555965, dated November 21, 1991, Customs held that a hearing aid programming unit was not a "part" of a hearing aid and could be entered duty-free. The product involved in HRL 555965 was very similar to the instant case. A hearing aid programming unit sets the frequency parameters of hearing aids to meet the hearing requirements of an individual. The imported articles in the instant case can be distinguished from HRL 087559 because although the portaREM-2000 is designed to be used with a hearing aid, it is a completely finished and self-contained object and does not function as a "part" of a hearing aid. The hearing aid and the portaREM-2000 are not a combined entity. Rather , the portaREM-2000 operates much like the hearing aid programming unit: it is functionally self-sufficient and does not undergo any further manufacture or manipulation after importation into the U.S., and once the hearing aid is adjusted, it is not needed for the functioning of the hearing aids for its intended purpose.

Therefore, we find that the portaREM-2000 is not a part of a hearing aid.
Since this article is designed to benefit the handicapped, it is entitled to duty-free treatment under subheading 9817.00.96, HTSUS.


The portaRem-2000 is entitled to duty-free treatment under subheading 9817.00.96, HTSUS. Accordingly, you should grant this protest in full.

In accordance with Section 3a(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, this decision should be attached to Customs Form 19, Notice of Action, and be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of this decision. Sixty days from the date of this decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and to the public via the Diskette Subscription Service, the Freedom of Information Act, and other public access channels.


John Durant, Director
Commercial Rulings Division

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