CLA-2-90:OT:RR:NC:2:235
Ms. Cindi Kavanaugh
MGTA
4455 Genesee Street
Cheektowaga, NY 14225
RE: The tariff classification of a “Taska Myoelectric Prosthetic Hand Set” from New Zealand and China
Dear Ms. Kavanaugh:
In your letter dated August 7, 2017, on behalf of your client, 5th Element, Ltd., you requested a classification ruling on a “Taska Myoelectric Prosthetic Hand Set.” In your letter, you have described the product at issue as a prosthetic hand kit designed for amputees who have suffered the loss of one’s hand(s) due to disease or through an accident. The kit includes one prosthetic hand, two rechargeable batteries, two chargers, one power switch and charger connection, one Bluetooth adaptor, one spare dorsal cover, and two plastic blocks. The plastic blocks are used by clinicians to mold around when making the arm socket, so that cavities are created to house the batteries and power switch.
The Explanatory Notes to the Harmonized Tariff System, although not legally binding, provide guidance in the interpretation of the Harmonized Commodity Description and Coding System at the international level. Explanatory Note X to GRI 3 (b) provides that the term "goods put up in sets for retail sale" means goods that; (a) consist of at least two different articles which are, prima facie, classifiable in different headings; (b) consist of articles put up together to meet a particular need or carry out a specific activity; and (c) are put up in a manner suitable for sale directly to users without re-packing. Goods classifiable under GRI 3 (b) are classified as if they consisted of the material or component which gives them their essential character, which may be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the article. GRI 3 (c) provides that when goods cannot be classified by reference to GRI 3 (a) or 3 (b), they are to be classified in the heading that occurs last in numerical order among those which equally merit consideration.
The “Taska Myoelectric Prosthetic Hand Set” will be classified as a set for tariff classification purposes in accordance with GRI 3(b), with the essential character imparted by the prosthetic hand.
The applicable subheading for the “Taska Myoelectric Prosthetic Hand Set” will be 9021.39.0000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for Orthopedic appliances, including crutches, surgical belts and trusses; splints and other fracture appliances; artificial parts of the body; hearing aids and other appliances which are worn or carried, or implanted in the body, to compensate for a defect or disability; parts and accessories thereof: Orthopedic and fracture appliances, and parts and accessories thereof: Other artificial parts of the body and parts and accessories thereof: Other.” The general rate of duty will be Free.
In your letter, you also requested consideration of the instant product under the Nairobi Protocol. You state that the product at issue is specially designed or adapted for the handicapped within the meaning of the Nairobi Protocol, and therefore, eligible for duty-free treatment under subheading 9817.00.96, HTSUS. 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, HTSUSA. 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" are eligible for duty-free treatment. U.S. Note 4(a), subchapter XVII, Chapter 98, HTSUSA, 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, HTSUSA, 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 article is specially designed or adapted for the “use or benefit of the handicapped” 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.
It is our opinion that the “Taska Myoelectric Prosthetic Hand Set” described above is considered to be specially designed or adapted for the handicapped, and therefore, eligible for duty-free treatment under subheading 9817.00.96.
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 Nuccio Fera at [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division