CLA-2-90:OT:RR:NC:N3:135
Mr. Robert Leo
Meeks, Sheppard, Leo & Pillsbury
570 Lexington Avenue, Suite 2405
New York, NY 10022
RE: The tariff classification of a specialized elbow with a NIVO port from China
Dear Mr. Leo:
In your letter dated June 18, 2021, you requested a tariff classification ruling on behalf of Respironics, Inc. Additional information was received by email on June 25, 2021.
The merchandise under consideration is a specialized Elbow w/ NIVO Port – 5 Pack (#1120967/APU1120967). It is a snap-type plastic elbow with a safety valve and a NIVO (Non-Invasive Ventilator Outlet) port covered by a port cap. Based on the brochure, the elbow is a part of an AF541 mask (oro-nasal mask). The brochure indicates that the elbow is both an entrainment elbow (EE) and a nebulizer elbow (NE). You explain that the entrainment feature is a safety valve that opens to the atmosphere if therapy pressure is removed, allowing for normal breathing to the atmosphere. The elbow is imported in a five-piece pack. It connects a breathing circuit with the mask and allows the air to reach the patient. These specific elbows are designed for and should only be used with a single limb circuit with Respironics’ BiPAP (bilevel positive airway pressure) non-invasive ventilator, such as DreamStation BiPAP S/T. This elbow requires the use of an exhalation feature in the circuit, such as a single limb ISO5356 NIV circuit. It cannot be used with a dual limb/critical care ventilator. You claim that the Philips Respironics BiPAP devices provide bilevel positive airway pressure (BiPAP) therapy to treat patients with obstructive sleep apnea.
The applicable subheading for the specialized Elbow w/ NIVO Port – 5 Pack (#1120967/APU1120967) will be 9019.20.0000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “[o]zone therapy, oxygen therapy, aerosol therapy, artificial respiration or other therapeutic respiration apparatus; parts and accessories thereof.” The general rate of duty will be free.
In your submission, you also request consideration of a secondary classification for the specialized Elbow w/ NIVO Port – 5 Pack under subheading 9817.00.96, HTSUS, which applies to "[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." Chapter 98, Subchapter XVII, U.S. Note 4(a), HTSUS, defines the term “blind or other physically or mentally handicapped persons” as including “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.” The issue in the instant case is whether the subject specialized Elbow w/ NIVO Port is “specially designed or adapted” for use in an article that is “specifically designed or adapted” for the use or benefit of handicapped persons, which is required under subheading 9817.00.96, HTSUS.
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.
You state the BiPAP devices are “specifically designed” for individuals with profound chronic breathing issues. The BiPAP devices are similar to Continuous Positive Airway Pressure (CPAP) respiratory devices. In NY ruling N301318, dated November 14, 2018, we ruled that the AirFit F20 QuietAir Elbow incorporating a valve, vents, side buttons, and a short swivel extension, which was a part of the Full Face Mask Complete System and used to connect the mask frame and the CPAP respiratory devices through the tubing, qualified for the secondary classification in subheading 9817.00.96. Accordingly, we find that the specialized Elbow w/ NIVO Port – 5 Pack are eligible for duty-free treatment under subheading 9817.00.96, HTSUS. As such, they would not be subject to Merchandise Processing Fee (MPF) per 19 C.F.R. § 24.23(c)(1)(i).
This classification has no effect on any quota, visa, or restricted merchandise requirements or countervailing or dumping duties.
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 Fei Chen at [email protected].
Sincerely,
Steven A. Mack Director National Commodity Specialist Division