The tariff classification of a textile air filter and plastic trays from China

N317529 March 3, 2021 CLA-2-59:OT:RR:NC:N3:350 CATEGORY: Classification TARIFF NO.: 3923.90.0080; 5911.90.0080; 9903.88.03 Mr. James Burritt DSV Air & Sea Inc. 1425 Corporate Center Drive San Diego, California 92154 RE: The tariff classification of a textile air filter and plastic trays from China Dear Mr. Burritt: In your correspondence dated February 4, 2021, you requested a tariff classification ruling by providing our office with additional requested information, on behalf of your client, ResMed Corp. A new control number was assigned to your request on February 11, 2021. Samples of the air filter were provided and will be retained by this office. In your original submission, you indicate the products are intended to be used in conjunction with a continuous positive airway pressure (“CPAP”) machine. You indicate that the air filter, marked as part “36851” on its packaging, is an air filter that is used to clean the air of particulates (dust and pollen) as it moves through the CPAP machine. The air filter is said to be composed wholly of polyester and is custom fitted to the necessary size for the CPAP machine and will be imported from China. Our observations indicate that the each of the four corners of the nonwoven air filters have been rounded and the edges have been heat sealed and are visibly tapered. In your letter, you suggested that the air filter should be classified in subheading 9019.20.0000, HTSUS, which provides for “Ozone therapy, oxygen therapy, aerosol therapy, artificial respiration or other therapeutic respiration apparatus; parts and accessories thereof.”  We disagree.  It is precluded from Chapter 90 per note 1(a) to the chapter, which states that Chapter 90 does not cover “[a]rticles of a kind used in machines, appliances or for other technical uses, of … textile material (heading 5911).” Similar textile air filters have been previously found to be classified in heading 5911, HTSUS. The applicable subheading for air filter part 36851 will be 5911.90.0080, HTSUS, which provides for “Textile products and articles, for technical uses, specified in note 7 to this chapter: Other: Other.” The rate of duty will be 3.8 percent ad valorem. Item 2 is a cushion spare pack tray, part no. R638-7108.  The product is a molded plastic container, designed to fit AirFit nasal pillows.  These trays are disposable containers, not designed for reuse.  They will only be used to ship the nasal pillows to the end-user.  The trays will be imported empty. The applicable subheading for the cushion spare pack tray will be 3923.90.0080, Harmonized Tariff Schedule of the United States (HTSUS), which provides for articles for the conveyance or packing of goods; of plastics: other: other.  The general rate of duty will be 3 percent ad valorem. You suggested that the cushion spare pack tray, part no. R638-7108 will qualify for secondary classification under 9817.00.96, HTSUS, which provides for articles specially designed or adapted for the use of benefit of the blind or other physically or mentally handicapped persons; parts and accessories.  We disagree.  These cushion spare pack trays do not qualify as parts of accessories of a sleep apnea machine.  These trays are merely packaging for shipping the nasal pillows to the end-user.  We are returning your request for a classification ruling on Item 3, plastic bag, part R638-7108, imported from China, because we are precluded from issuing a ruling letter by the provisions of Section 177.7(b) of the Customs Regulations (19 C.F.R. 177.7(b)). As stated in Section 177.7(b), "No ruling letter will be issued with respect to any issue which is pending before the United States Court of International Trade, the United States Court of Appeals for the Federal Circuit, or any court of appeal therefrom.” Since the classification of the plastic bag, part R638-7108, which is the subject of this request for a ruling, may be affected by the case before the Court in S.C. Johnson & Son, Inc. v. United States, Court No. 14-00184, we are precluded from issuing a ruling on the bags. Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 3923.90.0080 and 5911.90.0080, 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 3923.90.0080 or 5911.90.0080, 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. 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 http://www.usitc.gov/tata/hts/. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177). This ruling is being issued under the assumption that the subject goods, in their condition as imported into the United States, conform to the facts and the description as set forth both in the ruling request and in this ruling. In the event that the facts or merchandise are modified in any way, you should bring this to the attention of Customs and you should resubmit for a new ruling in accordance with 19 CFR 177.2. You should also be aware that the material facts described in the foregoing ruling may be subject to periodic verification by Customs. 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 Michael Capanna at michael.s.capanna @ cbp.dhs.gov. Sincerely, Steven A. Mack Director National Commodity Specialist Division