CLA-2-39:OT:RR:NC:N1:137
Robert Leo
Meeks, Sheppard, Leo & Pillsbury
570 Lexington Avenue, Suite 2405
New York, New York 10022
RE: The tariff classification of a plastic tube assembly from China
Dear Mr. Leo:
In your letter dated February 23, 2021 you requested a tariff classification ruling, on behalf of your client, Respironics, Inc.
The product is identified as a BiPAP disposable single use circuit that is designed to be used exclusively with the BiPAP Vision device. The BiPAP disposable circuit consists of one length of plastic tubing measuring approximately 6 feet long and 22-millimeter diameter providing the pathway between ventilator and patient interface. It also includes a proximal pressure sampling line exhalation device for connection to the patient interface, a hose clip, and a tubing hanger.
You propose classification in subheading 9010.20 of the Harmonized Tariff Schedule of the United States (HTSUS), which provides for ozone therapy, oxygen therapy, aerosol therapy, artificial respiration or other therapeutic respiration apparatus, parts, and accessories thereof. Additional Rule of Interpretation 1(c), HTSUS, provides 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 more specific provision for such part or accessory. By application of U.S. Rule of Interpretation 1(c), items are excluded from Chapter 90 when there is a specific provision for that part itself. Plastic pipes, tubes and hoses are specifically provided for in heading 3917. For a detailed discussion of the application of U.S. Rule 1(c), see Headquarters Rulings 965968 of December 16, 2002 and 967233 of February 18, 2005.
The applicable subheading for the plastic tubing assembly identified as BiPAP disposable circuit will be 3917.33.0000, HTSUS, which provides for tubes, pipes and hoses and fittings therefor, (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.
You suggest duty free treatment for the BiPAP disposable circuits in subheading 9817.00.96 of the HTSUS 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 "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" 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 the BiPAP Vision and subsequently the BiPAP Disposable circuits 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. as articles for the handicapped.
According to your submission, the primary intent of the BiPAP Vision was for acute applications in a hospital or institutional setting. You contend that this is no longer the case because acute care patients may have underlying chronic conditions or diseases and, once the acute phase has passed, may still receive respiratory therapy for their chronic condition, in an institutional setting. Since the primary intent is use in an acute care setting, it is the opinion of this office that it has not been established that this product was specially designed for those with a permanent or chronic incapacity, as opposed to an acute, but often transient, disability or condition. Therefore, secondary classification in 9817.00.96, HTSUS, would not apply.
Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 3917.33.0000, HTSUS, unless specifically excluded, are subject to an additional 25 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 HTSUS is subject to periodic amendment so you should exercise reasonable care in monitoring the status of goods covered by the Note cited above and the applicable Chapter 99 subheading. For background information regarding the trade remedy initiated pursuant to Section 301 of the Trade Act of 1974, you may refer to the relevant parts of the USTR and CBP websites, which are available at https://ustr.gov/issue-areas/enforcement/section-301-investigations/tariff-actions and https://www.cbp.gov/trade/remedies/301-certain-products-china, respectively.
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 the 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].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division