The tariff classification of a carrying case from China

N095268 March 19, 2010 CLA-2-42:OT:RR:NC:N4:441 CATEGORY: Classification TARIFF NO.: 4202.92.9026 John B. Ammerman AccuMED Technologies, Inc. 160 Bud Mil Drive Buffalo, NY 14206 RE: The tariff classification of a carrying case from China Dear Mr. Ammerman: In your letter dated February 18, 2010, you requested a tariff classification ruling. Your sample will be returned. The sample you refer to as the Exogen carrying case is constructed with an outer surface of man-made textile material. The top of the bag has a carrying handle and there is a zipper closure along three-sides. The inside of the case has a pre-cut, specially designed polyurethane foam inserts shaped to the various individual components of the bone-healing device. The case is designed to provide storage, protection, and portability to the bone healing device. It measures approximately 10.5” (W) x 12” (L) x 2” (D). The applicable subheading for the carrying case will be 4202.92.9026, HTSUS, which provides for other containers and cases, with outer surface of man-made textile materials. The duty rate will be 17.6% ad valorem. In your submission, you request a secondary classification for the Exogen carrying case under 9817.00.96 Harmonized Tariff Schedule of the United States (HTSUS), as an article specially designed for use by the chronically permanently disabled or handicapped persons. To support your assertion that the carrying case qualifies for treatment under HTSUS 9817.00.96, you state that the case is specially designed to transport and store the Exogen Ultrasound Bone Healing System. The interior of the case contains special pre-cut foam inserts to accommodate the Exogen device and its components, and the exterior is emblazoned with the logos of Exogen and Smith & Nephew (the manufacturer of the Exogen device). HTSUS Chapter 98, Subchapter 17, U.S. Note 4(b) states that HTSUS 9817.00.96 cannot be applied to articles designed to treat an acute or transient disability, as opposed to a chronic or permanent affliction. You state in your submission that the Exogen Ultrasound Bone Healing System is currently undergoing clinical trials for the treatment of Degenerative Disk Disease, an affliction the U.S. National Institutes of Health considers a long-term chronic condition. While the Exogen device may be undergoing trials related to Degenerative Disk Disease, a review of Smith & Nephew’s website shows that the Exogen Bone Healing System is primarily marketed to individuals who have suffered a broken bone or fracture. The website states that “The Exogen System uses ultrasound to heal broken bones faster”, and that the device is “FDA approved to treat fractures that have not healed (non-unions) as well as appropriate fresh (recent) fractures.” Broken bones are not considered a chronic or permanent affliction, thus a device designed to accelerate their healing would not qualify for treatment under HTSUS 9817.00.96. Furthermore, although you state that the Exogen device is undergoing clinical trials for the treatment of Degenerative Disk Disease, the device’s role in treating that affliction is fairly limited. The Exogen Ultrasound Bone Healing System would only be used after a sufferer has undergone spinal surgery. After the surgery, the patient would use the Exogen device for a limited period of time (3 to 18 months based on your submission) to assist in spinal fusion with a local bone graft. Based on the fact that the Exogen device is not primarily used to treat permanent or chronic disabilties, the Exogen carrying case would not qualify for a secondary classification of 9817.00.96. 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 ruling, contact National Import Specialist Vikki Lazaro at (646) 733-3041. Sincerely, Robert B. Swierupski Director National Commodity Specialist Division