CLA-2-90:OT:RR:NC:N3:135
Mr. James Burritt
Panalpina, Inc.
1425 Corporate Center Drive, Suite 900
San Diego, CA 92154
RE: The tariff classification of a face mask complete system, its components, and a tubing from Australia, Hong Kong, China, India, New Zealand, or Singapore.
Dear Mr. Burritt:
In your letter dated October 1, 2018, on behalf of ResMed Corp, you requested a tariff classification ruling. The sample submitted was examined and disposed of.
The products under consideration include five items. Item #1 is an AirFit F20 Full Face Mask Complete System (part 63402) consisting of four components, namely, AirFit F20 QuietAir Elbow (part 63494), mask frame, AirFit F20 Cushion (part 63469), and AirFit F20 Headgear (part 63471). Item # 2, 3, and 4 are the three components of Item #1. Item #2, AirFit F20 QuietAir Elbow, is a plastic elbow connector incorporating a valve, vents, side buttons, and a short swivel extension. The QuietAir Elbow is used to connect the mask frame and a tubing. Item #3, AirFit F20 Cushion, is a soft rubberized facial cushion fixed to a plastic semi-rigid frame. The entire Cushion can be attached to or detached from the mask frame. Item #4, AirFit F20 Headgear, is made of textile material sewn together to form a crown with two short straps and two long straps. The end of each straps is constructed with a hook and loop fastener. The two long straps also hold a metal clip each. Item #5, Air Tubing Grey – 3 Meter (part 14922), is a flexible plastic tubing with fittings said to be medically engineered and designed for Continuous Positive Airway Pressure (CPAP) respiratory devices. You state that all above part numbers (Item #1 through Item #5) are indicative of size, color, or gender and that different part numbers are used to differentiate these characteristics; however, the functional use of each item remains the same. In use, the Full Face Mask Complete System will be connected to a CPAP respiratory device through the Air Tubing.
You state the above and reference items will be imported as a set or individually. It is unclear to us whether Item numbers 2, 3, and 4 are imported as a set or Item numbers 2, 3, 4 and 5 are imported as a set or other combinations. You need to specify the exact components and the quantity and value of each component in the set. Per Customs Regulation 177.7, no rulings will be issued to transactions which are essentially hypothetical in nature so we will rule only on each item when imported separately. Furthermore, ruling requests are limited a maximum of 5 items of the same class or kind. You may resubmit a request for the set, which you plan to import.
In your letter, you suggest that all five items are classified under subheading 9019.20.0000, Harmonized Tariff Schedule of the United States (HTSUS), as artificial respiration or other therapeutic respiration apparatus and parts and accessories thereof. We agree that the first four items are classified in the subheading. However, Item #5, Air Tubing Grey – 3 Meter, will be classified differently. Tariff classification under the HTSUS is governed by the principles set forth in the General Rules of Interpretation and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation. The General Rules of Interpretation and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes. Additional U.S Rule of Interpretation 1(c) states that in the absence of special language or context which otherwise requires, a provision for parts of an article covers products solely or principally used as a part of such articles but a provision for “parts” or “parts and accessories” shall not prevail over a specific provision for such part or accessory. Even if the tubing were considered to be a part or an accessory of the CPAP device, the tubing is specifically provided for in heading 3917, and that specific provision prevails.
The applicable subheading for Item numbers 1, 2, 3, and 4 will be 9019.20.000, HTSUS, which provides for “Ozone therapy, oxygen therapy, aerosol therapy, artificial respiration or other therapeutic respiration apparatus; parts and accessories thereof.” The general rate of duty will be free.
The applicable subheading for Item #5 will be 3917.33.0000, HTSUS, which provides for “Tubes, pipes and hoses and fittings thereof, (for example, joints, elbow, flanges), of plastics: Other tubes, pipes and hoses: Other, not reinforced or otherwise combined with other materials, with fittings.” The general rate of duty will be 3.1 percent ad valorem.
Effective July 6, 2018, the Office of the United States Trade Representative (USTR) imposed an additional tariff on certain products of China classified in the subheadings enumerated in Section XXII, Chapter 99, Subchapter III U.S. Note 20(b), HTSUS. The USTR imposed additional tariffs, effective August 23, 2018, on products classified under the subheadings enumerated in Section XXII, Chapter 99, Subchapter III U.S. Note 20(d), HTSUS. Subsequently, the USTR imposed further tariffs, effective September 24, 2018, on products classified under the subheadings enumerated in Section XXII, Chapter 99, Subchapter III U.S. Note 20(f) and U.S. Note 20(g), HTSUS. For additional information, please see the relevant Federal Register notices dated June 20, 2018 (83 F.R. 28710), August 16, 2018 (83 F.R. 40823), and September 21, 2018 (83 F.R. 47974). Products of China that are provided for in subheading 9903.88.01, 9903.88.02, 9903.88.03, or 9903.88.04 and classified in one of the subheadings enumerated in U.S. Note 20(b), U.S. Note 20(d), U.S. Note 20(f) or U.S. Note 20(g) to subchapter III shall continue to be subject to antidumping, countervailing, or other duties, fees and charges that apply to such products, as well as to those imposed by the aforementioned Chapter 99 subheadings.
Products of China classified under subheading 3917.33.0000, HTSUS, unless specifically excluded, are subject to the additional 10 percent ad valorem rate of duty. At the time of importation, you must report the Chapter 99 subheading, i.e., 9903.88.03, in addition to subheading 3917.33.0000, HTSUS, listed above.
The tariff is subject to periodic amendment so you should exercise reasonable care in monitoring the status of goods covered by the Notice cited above and the applicable Chapter 99 subheading.
You also request consideration of Item #1 through Item #5 under the Nairobi Protocol. The Nairobi Protocol to the Agreement on the Importation of Educational, Scientific, and Cultural Materials Act of 1982, established the duty-free treatment for certain articles for the handicapped. Presidential Proclamation 5978 and Section 1121 of the Omnibus Trade and Competitiveness Act of 1988, provided for the implementation of the Nairobi Protocol into subheadings 9817.00.92, 9817.00.94, and 9817.00.96, HTSUS. These tariff provisions specifically state that "[a]rticles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons: parts and accessories (except parts and accessories of braces and artificial limb prosthetics) that are specially designed or adapted for use in the foregoing article" are eligible for duty-free treatment. U.S. Note 4(a), subchapter XVII, 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."
U.S. Note 4(b), subchapter XVII, Chapter 98, HTSUS, which establishes limits on classification of products in these subheadings, states as follows: (b) 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 primary issue is whether Item #1 through Item #5 are specially designed or adapted for the “use or benefit of the handicapped” and whether parts and accessories that are specially designed or adapted for use in the foregoing article fall within the meaning of Nairobi Protocol. Although the legislative history of the Nairobi Protocol discusses the concerns of Congress that the design, modification or adaptation of an article must be significant so as to clearly render the article for use by handicapped individuals, no specific definition of these terms was established by Congress. See, Senate Report (Finance Committee) No. 97-564, September 21, 1982). See also, Headquarters Ruling Letter (HRL) 951004 dated March 3, 1992. Since it is difficult to establish a clear definition of what is “specially designed or adapted," various factors must be utilized on a case-by-case basis to determine whether a given article is "specially designed or adapted" within the meaning of this statute.
Based on the information supplied, it is the opinion of this office that a secondary classification will apply for Item #1 through Item #5 in subheading 9817.00.96, HTSUS, as “Articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons; parts and accessories (except parts and accessories of braces and artificial limb prosthetics) that are specially designed or adapted for use in the foregoing article: Other”, free of duty and the Merchandise Processing Fee (MPF). 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 countervailing or dumping duties.
Please note that the additional duties imposed by headings 9903.88.01, 9903.88.02, 9903.88.03, and 9903.88.04 do not apply to goods for which entry is properly claimed under a provision of chapter 98 of the HTSUS, except for goods entered under headings 9802.00.40, 9802.00.50, 9802.00.60, and 9802.00.80. For headings 9802.00.40, 9802.00.50, and 9802.00.60, the additional duties apply to the value of repairs, alterations, or processing performed abroad, as described in the applicable heading. For heading 9802.00.80, the additional duties apply to the value of the article less the cost or value of such products of the United States, as described in heading 9802.00.80.
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 https://hts.usitc.gov/current.
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 Christina Allen at [email protected] for Item #5 or Fei Chen at [email protected] for Items #1 through 4.
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division