The tariff classification of Sidestream Disposable & Tubing and Mask kits (#4447) from China

N318037 March 31, 2021 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, Suite 2405 New York, NY 10022 RE: The tariff classification of Sidestream Disposable & Tubing and Mask kits (#4447) from China Dear Mr. Leo: In your letter dated March 2, 2021, you requested a tariff classification ruling on behalf of Respironics, Inc. A revised letter with additional information was provided via email on March 15, 2021. You refer to the merchandise under consideration as Sidestream Disposable & Tubing and Mask kits (#4447). Each kit consists of a Sidestream disposable plastic assembly (nebulizer), a child aerosol mask assembly, disposable plastic tubing, and an instruction manual, packed in a plastic bag. Fifty bags are packaged together in a carton box. They are imported by Respironics, Inc. and re-exported for sale outside the United States through a distributor or directly to the user without further repacking. The kit will be used with an air compressor to form a nebulizer compressor system, also known as an aerosol delivery system. You claim that the nebulizer compressor system treats patients with asthma and other chronic breathing problems. The applicable subheading for the Sidestream Disposable & Tubing and Mask kits (#4447) 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 Sidestream Disposable & Tubing and Mask kits 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 kit 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. CBP has determined that a delivery device for medication for individuals suffering from chronic respiratory conditions, such as asthma, qualifies as an article specially designed or adapted for the use or benefit of the handicapped. See NY M85686, dated September 12, 2006. In this case, the Sidestream Disposable & Tubing and Mask kit consists of individual components intended to contribute toward a clearly defined function. The components of the kit are necessary for the completion of the nebulizer compressor system, which could not function successfully without them, as there would be no means to form, convey, and deliver the medication aerosol to the user. The kit is specifically designed for use with the air compressor as the items within the kit consist of integral components for the nebulizer compressor system, which is designed for individuals with chronic breathing difficulties like asthma. In NY ruling A89961, dated December 24, 1996, CBP ruled that a durable Sidestream Nebulizer, a disposable Sidestream Nebulizer, and an Aerosol Compressor with a case and all accessories were eligible for duty-free treatment under subheading 9817.00.96, HTSUS. Also see N205393 dated March 20, 2012. Accordingly, it is our determination that the subject kit (#4447) is a “part” of the nebulizer compressor system, which is itself an article “specially designed or adapted for the handicapped” within the meaning of the Nairobi Protocol. As such, the kit is entitled to free duty and Merchandise Processing Fee (MPF) treatment under subheading 9817.00.96, HTSUS, as a part of an article specially designed or adapted for the use or benefit of the handicapped. 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. MackDirectorNational Commodity Specialist Division