The tariff classification of parts of a Continuous Positive Airway Pressure (CPAP) device from China.

N311548 May 20, 2020 CLA-2-90:OT:RR:NC:N3:135 CATEGORY: Classification TARIFF NO.: 9019.20.0000; 9817.00.96 Mr. Robert Leo Meeks, Sheppard, Leo & Pillsbury 570 Lexington Avenue, 24th Floor New York, NY 10022 RE: The tariff classification of parts of a Continuous Positive Airway Pressure (CPAP) device from China. Dear Mr. Leo: In your letter dated May 1, 2020, on behalf of Respironics,Inc., you requested a tariff classification ruling. The merchandise under consideration is the Front Cover (# 1128242) and the Rear Cover (#1128243) of a DreamStation Go device, which is a portable CPAP therapy device designed for the treatment of obstructive sleep apnea. They are three-dimensional, molded, rigid, plastic end caps that are designed to slide onto the left and right sides of the device and provide protection to the device as well as access to all of the device connections. Both have rounded corners, a large opening in the left or right panel for a power cord or tubing depending on the Cover, a “button” on each side of the bottom panel, and a “bar” on the bottom panel. The “button” is made up of three little dots of rubber. The “bar” is a rubber strip with the shape of a rounded rectangle, said to be the foot for the device controlling vibration and increasing coefficient of friction between the device and a customer’s table-top surface. The “buttons” and the “bars” are molded into the Covers and are not separate components. They serve as indicators to grab, and improve usability to grab and remove the Covers. The Front Cover also features a pattern of holes for air inlet. The Front Cover and Rear Cover are designed to be form fitting to the dimensions of the DreamStation Go device, in order to make a complete device, to be used exclusively with the device, and intended to be used at all times. The applicable subheading for the Front Cover and Rear Cover 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. You also request consideration of both Covers 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 both Covers are “specially designed or adapted” for use in an article that is “specifically designed or adapted” for the use or benefit of handicapped persons within the meaning of the 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. Customs and Border Protection has determined that the CPAP devices designed for the treatment of obstructive sleep apnea qualify for duty-free treatment under subheading 9817.00.96, HTSUS. See NY ruling N059778 (dated May 29, 2009). In consideration of the information supplied, we believe that both Covers are necessary parts specially designed or adapted for use in the DreamStation Go therapy device and therefore eligible for classification in subheading 9817.00.96, HTSUS, which provides for “[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: [o]ther,” 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. 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