CLA–2 OT:RR:CTF:TCM H235507 ERB
Mr. Dan Beauregard
A.N. Deringer, Inc.
P.O. Box 284
Highgate Springs, VT 05460
RE: Modification of NY 868691, Modification of NY 871935, Modification of NY B87708, Modification of NY C81648, Modification of NY D83377, Revocation of NY N092699; Tariff Classification of various patient lifts
Dear Mr. Beauregard:
This is in reference to the above referenced New York Ruling Letters, which each regard the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS) of a product identified as a patient or person lifting device. The rulings were either issued to you, or issued to you on behalf of a client, by U.S. Customs and Border Protection (CBP).
In the above referenced rulings, CBP classified the subject patient lifting devices under heading 9402, HTSUS, which provides for medical furniture. We have since reviewed these rulings and found them to be incorrect. For the reasons set forth below, we intend to modify the following rulings which classify substantially similar products under heading 9402, HTSUS: NY 868691, dated December 10, 1991 (three types of patient lifters, a hydraulic mobile machine, an electric mobile machine, and a ceiling mounted system); NY 871935, dated March 25, 1992 (three styles of the Liko MasterLift System); NY B87708, dated July 30, 1997 (Albatros and Ergotrac ceiling lift systems, and Ergolift floor lift); NY C81648, dated November 24, 1997 (four models of the Pro-Med Patient Lifting System); and NY D83377, dated November 6, 1998 (the Invacare bath lift).
We also intend to revoke NY N092699, dated February 25, 2010, (classifying the Proxi-Motion patient lift). Pursuant to 19 U.S.C. § 1625(c) and 19 C.F.R. § 177.12(b), Customs is to follow a notice and comment procedure if conflicting or inconsistent rulings exist. We have reviewed NY N092699, and while the classification itself is correct, it was issued in conflict with the aforementioned rulings NY 868691, NY 871935, NY B87708, NY C81648, and NY D83377.
For ease, this ruling will only discuss the facts of NY B87708. However, as the goods of each of the aforementioned rulings are identical or substantially similar with regards to the patient lifts, the analysis contained herein will apply to all named rulings.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 23 of Title VI, Notice of the proposed action to modify or revoke the aforementioned rulings was published in the Customs Bulletin, Vol. 50, No. 10, on March 9, 2016. No comments were received in response to the proposed notice of action.
FACTS:
In NY B87708, CBP described the Albatros and Ergotrac Ceiling Lift Systems, and the Ergolift Floor Lift, in the following manner:
The Albatros Ceiling lift System is a patient-lifting system which operates on two motorized axes. It features an automatic return-to-charge function, a lifting capacity of 250 kgs (550 lbs.), a battery supply unit, an emergency stop pull cord and an emergency lowering device.
The Ergotrac Ceiling Lift System is a patient-transfer system on a fixed rail with two axes, permitting easy manual lateral displacement. It is electrically powered and features a lifting capacity of 190 kgs (418) lbs.), a padded universal carry bar which accepts all types of slings, an automatic back-up battery supply nit and emergency Up/Down buttons.
The Ergolift is an ergonomic floor lift. It features multi-positioned handles near the care giver, motorized opening of the legs, an easily accessible emergency stop button, patient rotation capability of 360 degrees, a directional blockage system, luminous dials for battery and charging function, and a padded swivel carry bar adaptable to all types of slings. The patient can be hoisted from the floor without lifting the shoulders. The standardized motorized opening of the legs of the Ergolift and the optimal distribution of the patient’s weight, allows the caregiver to easily maneuver the unit without risk.
***
The applicable subheading for the Albatros and Ergotrac Ceiling Lift Systems, the Ergo lift Floor Lift and Ergofit Slings will be 9402.90.0020, Harmonized Tariff Schedule of the United States (HTS), which provides for Medical, surgical, dental or veterinary furniture: … parts of the foregoing articles: Other, other. The rate of duty will be 2.1% ad valorem.
The Albatros and Ergotrac Ceiling Lift Systems, the Ergolift Floor Lift … appear to be intended for the use of individuals with a chronic ailment which substantially limits their ability to care for themselves. The devices are therefore eligible for a free rate of duty as articles specially designed or adapted for the use or benefit of physically or mentally handicapped persons in subheading 9817.00.9600, HTS.
ISSUE:
Whether the instant products are properly classified under heading 8428, HTSUS, which provides for “Other lifting … machinery”, or under heading 9402, HTSUS, which provides for “Medical … furniture”.
LAW AND ANALYSIS:
Classification of goods under the HTSUS 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 HTSUS provisions under consideration are:
8428 Other lifting, handling, loading or unloading machinery (for example, elevators, escalators, conveyors, teleferics):
9402 Medical, surgical, dental or veterinary furniture (for example, operating tables, examination tables, hospital beds with mechanical fittings, dentists' chairs); barbers' chairs and similar chairs, having rotating as well as both reclining and elevating movements; parts of the foregoing articles:
Note 2 to Chapter 94, HTSUS, states, in pertinent part:
The articles (other than parts) referred to in headings 9401 to 9403 are to be classified in those headings only if they are designed for placing on the floor or ground.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs), constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. See T.D. 89–80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 84.28 states, in pertinent part:
[T]his heading covers a wide range of machinery for the mechanical handling of materials, goods, etc. (lifting, conveying, loading, unloading, etc.). They remain here even if specialised for a particular industry, for agriculture, metallurgy, etc.
The heading covers lifting or handling machines usually based on pulley, winch or jacking systems, and often including large proportions of static structural steelwork, etc. These static structural elements (e.g., pylons specialised for teleferics, etc.) are classified in this heading when they are presented as parts of a more or less complete handling machine.
These more complex machines include:
(III) OTHER SPECIAL LIFTING OR HANDLING MACHINERY
(L) Patient lifts. These are devices with a supporting structure and a seat for the raising and lowering of seated persons, e.g., in a bathroom or onto a bed. The mobile seat is fixed to the supporting structure by means of ropes or chains.
The General EN to Chapter 94 states, in pertinent part:
For the purposes of this Chapter, the term “furniture” means:
(A) Any “movable” articles (not included under other more specific headings of the Nomenclature), which have the essential characteristic that they are constructed for placing on the floor or ground, and which are used, mainly with a utilitarian purpose, to equip private dwellings, hotels, theatres, cinemas, offices, churches, schools, cafés, restaurants, laboratories, hospitals, dentists’ surgeries, etc., or ships, aircraft, railway coaches, motor vehicles, caravan-trailers or similar means of transport.
EN 94.02 states, in pertinent part:
(A) MEDICAL, SURGICAL, DENTAL OR VETERINARY FURNITURE
It should be noted that this group is restricted to furniture of a type specially designed for medical, surgical, dental or veterinary use; furniture for general use not having such characteristics is therefore excluded.
Heading 9402, HTSUS, provides in pertinent part for medical furniture. To satisfy the heading text, however, the goods must be both specially designed for medical, surgical, dental or veterinary use, and they must be “furniture.” See EN to Chapter 94, and EN 94.02.
The General EN (A) to Chapter 94 defines furniture as: “[a]ny ‘movable’ articles ... which have the essential characteristic that they are constructed, in some cases, for placing on the floor or ground, and which are used, mainly with a utilitarian purpose, to equip private dwellings and other places.” CBP has previously considered the meaning of the term “equip” as well as the phrase “to equip”. In HQ 964352, dated September 11, 2000 CBP cited The Random House Dictionary of the English Language, (1973), which defines the word “equip” as meaning: “To furnish or provide with whatever is needed for service or for any undertaking”. There, CBP ultimately determined that waste receptacles were not designed to equip a building, office, or room, but instead were temporary repositories of waste. See also HQ 964053, dated July 27, 2000; and HQ 962658, dated July 18, 2000. By including the words “not included under other more specific headings” in the definition of furniture, the drafters of the ENs intended that Chapter 94 would not cover all “moveable” articles constructed for placing on the floor. A more specific heading which better describes the article is preferable to the more general heading of furniture. While the instant lifts are constructed, in some cases, for placing on the ground, they are not used to equip private dwellings or other places. They do not have a utilitarian purpose of equipping a room. Rather, they are used to transfer a patient to and from a bath or bed. As such, the instant lifts are not “furniture,” and are not properly classified as such under chapter 94, specifically, heading 9402, HTSUS.
Heading 8428, HTSUS, provides, in pertinent part, for other lifting machinery. See NY N160936, dated May 2, 2011 (classifying a power lift gate assembly); NY N057959, dated April 27, 2009 (classifying a motorcycle lift). The heading covers specialized lifting machines based on pulley, winch or jacking systems, which often included large proportions of static structural elements. See EN 84.28.
In November 2003, Subsection (III)(L) was added to the EN 84.28, by corrigendum. See Annex D/1 to Doc. NC0796B2 (HSC/32/Nov. 2003), para. 100; Annex L/14 to Doc. NC0796B2. This addition provides specifically for “patient lifts,” described as supporting structure and a seat for the raising and lowering of seated persons, e.g., in a bathroom or onto a bed. See EN(III)(L) to 84.28.
The instant lifts are comprised of moveable metal structures that stand on the floor, or are ceiling or wall mounted. A fabric sling hangs down from the arm of the structure by ropes. The sling is designed such that a patient may be seated in it and transferred to and from a bed or a bath. Therefore, as the subject patient lifts meet the text of heading 8428, HTSUS, and are described by EN (III)(L) to 84.28, the lifts are classifiable under heading 8428, HTSUS. Specifically, the instant lifts are classified under subheading 8428.90.00, HTSUS, which provides for “Other lifting, handling, loading or unloading machinery (for example, elevators, escalators, conveyors, teleferics): Other machinery”.
Heading 9817
Section 1121 of the Omnibus Trade and Competitiveness Act of 1988 (Pub. L. No. 100-418, 102 Stat. 1107) and Presidential Proclamation 5978 implemented the Nairobi Protocol by inserting permanent provisions—specifically, subheadings 9817.00.92, 9817.00.94, and 9817.00.96—into the HTSUS. These tariff provisions specifically provide that "[a]rticles 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.
Notes in subchapter XVII of Chapter 98 of the HTSUS define the terms “blind or other physically or mentally handicapped persons” and limit the classification of certain products under subheadings 9817.00.92, 9817.00.94, and 9817.00.96. U.S. Note 4(a), subchapter XVII, Chapter 98, HTSUS, defines the term “blind or other physically or mentally handicapped persons” as “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), subchapter XVII, Chapter 98, HTSUS excludes four categories of goods from subheadings 9817.00.92, 9817.00.94, and 9817.00.96: (1) articles for acute or transient disability; (2) spectacles, dentures, and cosmetic articles for individuals not substantially disabled; (3) therapeutic and diagnostic articles; and (4) medicine or drugs.
CBP decides whether a product is “specially designed or adapted for the use or benefit” of the handicapped on a case-by-case basis, balancing five factors set forth in Headquarter Ruling Letter (“HQ”) HQ556449, dated May 5, 1992. Here, persons who are unable to lift or move themselves into or out of a bath or bed, specifically those with severe, chronic mobility issues qualify as “handicapped people” under U.S. Note 4 and the specific exclusions contained in U.S. Note 4(b) do not apply.
The physical properties of the subject patient lifting devices clearly distinguish them as those used in hospitals or clinics for patients unable to move themselves, or in some cases, are installed in a user’s home in circumstances where the user is unable to move themselves. Use of these patient lifts by the general public is improbable, and there is little evidence such use would be fugitive. The importers of the subject rulings here are recognized manufacturers or distributors of goods for the handicapped, specifically lifting and mobility devices, and the channels of commerce these goods are sold in is highly specialized to serve hospitals or clinics with handicapped patients. Finally, the condition of the articles at the time of importation indicate that these articles are for the handicapped. Therefore, pursuant to the factors stipulated in HQ 556449, the goods which qualified for duty-free treatment under subheading 9817.00.96, HTSUS, in its original ruling (e.g., NY 868691, NY B87708, NY C81648, and NY D83377) will maintain its qualification for duty-free treatment pursuant to the analysis herein. However, all applicable entry requirements must still be met.
HOLDING:
By application of GRI 1, the patient lifting devices described in NY 868691, NY 871935, NY B87708, NY C81648, NY D83377, and NY N092699 are classified under heading 8428, HTSUS, specifically under subheading 8428.90.0290, HTSUSA, which provides for “Other lifting, handling, loading or unloading machinery (for example, elevators, escalators, conveyors, teleferics): Other machinery”.
The column one, general rate of duty is free.
Duty rates are provided for convenience only and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
EFFECT ON OTHER RULINGS:
NY 868691, dated December 10, 1991; NY 871935, dated March 25, 1992; NY B87708, dated July 30, 1997; NY C81648, dated November 24, 1997; NY D83377, dated November 6, 1998 are hereby MODIFIED in accordance with the above analysis.
NY N092699, dated February 25, 2010 is hereby REVOKED.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division
CC:
Mr. Thomas F. Herceg
T.F. Herceg, Inc.
98 Ridge Road
Chester, NY 10918
Ms. Sandra L. Marshanke
C. J. Tower, Inc., Customs Brokers
128 Dearborn Street
Buffalo, NY 14207-3198
Ms. Lizzie McLeish
Pro-Med Australia Party Ltd.
P.O. Box 440
Moorabbin 3189
Victoria, Australia
Ms. Connie Freeman
The A.W. Fenton Company Inc.
P.O. Box 81179
Cleveland, OH 44181-0179
Mr. William Burak
Ergo-Asyst Technology, LLC
d/b/a/ Technimotion Medical
5810 Trade Center Drive, Suite 300
Austin, TX 78744