The secondary tariff classification of antibiotic impregnated catheters from Ireland

N207721 March 29, 2012 CLA-2-90:OT:RR:NC:4:405 CATEGORY: Classification TARIFF NO.: 9817.00.96 John M. Peterson Russell A. Semmel Neville Peterson, LLP Counsellors at Law 17 State Street – 19th Floor New York, New York 10004 RE: The secondary tariff classification of antibiotic impregnated catheters from Ireland Dear Mr. Peterson and Mr. Semmel: In your letter dated March 2, 2012, for Medtronics, you requested a tariff classification ruling. No samples were provided. We ruled upon the classification of these items under HTSUS Chapter 1 to 97 in New York Ruling Letter N196575 – 405, mailed to your office on December 30, 2011 In response to our questions in that letter, you indicate these Ares catheters are impregnated with two different antibiotics, “which are in smaller quantities to reduce the risk of toxicity as they are implanted in a child’s body.” These are thus designed for long term pediatric use, which makes their use in congenital hydrocephalus particularly likely. Regarding your claim of duty free treatment under HTSUS 9817.00.96, congenital hydrocephalus is chronic or permanent physical impairment which substantially limits one or more major life activities in terms of HTSUS, Chapter 98, Subchapter 17, U.S. Note 4.  Although HTSUS, Chapter 98, Subchapter 17, U.S. Note 4-b-iii excludes therapeutic articles, CBP has held that term to apply quite narrowly for the purposes of  HTSUS 9817.00.96. See, e.g., Headquarters Ruling Letter 561940 KSG, dated February 7, 2001, which applied HTSUS 9817.00.96 to microscopes designed for use in eye surgeries such as retinal reattachment.    On that basis, we agree that a secondary classification will apply for these items in HTSUS 9817.00.96, as specially designed or adapted for the use or benefit of the permanently or chronically physically or mentally handicapped (except articles for the blind), free of duty and user fees (if any).  Note that the requirement that the importer prepare and file a U.S. Department of Commerce form ITA-362P has been eliminated via a notice from the International Trade Administration, published in the Federal Register of June 1, 2010.  Also note that this classification has no effect on any quota, visa, or restricted merchandise requirements or dumping/countervailing duties.               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 J. Sheridan at (646) 733-3012. Sincerely, Thomas Russo Director National Commodity Specialist Division