The tariff classification of a plastic tube assembly from China

N318081 March 25, 2021 CLA-2-39:OT:RR:NC:N1:137 CATEGORY: Classification TARIFF NO.: 3917.33.0000, 9817.00.96 Robert Leo Meeks, Sheppard, Leo & Pillsbury 570 Lexington Avenue, Suite 2405 New York, New York 10022 RE: The tariff classification of a plastic tube assembly from China Dear Mr. Leo: In your letter dated March 3, 2021, you requested a tariff classification ruling, on behalf of your client, Respironics, Inc. The product under consideration is identified as a wisp tube assembly (#1105624/APU110562). The product consists of a flexible ribbed plastic tubing with a standard ISO connection on one end to connect to the main tubing and a click connection on the other end to allow connection to the wisp mask. You state that this product is designed for use with Continuous Positive Airway Pressure (CPAP) respiratory devices for the treatment of obstructive sleep apnea. In your letter, you claim the tubing is a custom assembly for use in CPAP products and suggest classification in subheading 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.”  We disagree.  The device is a complete apparatus and its electrical functioning does not depend on the use of the tubing; therefore, the tubing is not a part of the device.  Furthermore, the user manual indicates that the tubing is an accessory of the device.  Although Note 2(u) to Chapter 39 excludes articles of chapter 90, the exclusion note does not apply to the tubing because the note is tailored to exclude only articles of chapter 90, not the accessories of the articles of chapter 90.  Even if we were to consider the tubing as an accessory of the device subject to Note 2 to Chapter 90, we find that heading 3917, HTSUS, is a more specific provision based on the application of Additional U.S. Rule of Interpretation 1(c).  A more detailed explanation of this classification principle may be found in HQ 966963, dated April 30, 2004. The applicable subheading for the wisp tube assembly (#1105624/APU110562) will be 3917.33.0000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for tubes, pipes and hoses and fittings therefor (for example, joints, elbows, flanges), of plastics: other tubes, pipes and hoses: other, not reinforced or otherwise combined with other materials, with fittings. The general rate of duty will be 3.1 percent ad valorem. You also request consideration of the wisp tube assembly (#1105624/APU110562) 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 of 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 the wisp tube assembly (#1105624/APU110562) is specially designed or adapted for the “use or benefit of the handicapped” and whether parts and accessories that are specially designed or adapted for use in the foregoing article fall 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.Based on the information supplied, it is the opinion of this office that a secondary classification will apply for the wisp tube assembly (#1105624/APU110562) in subheading 9817.00.96, HTSUS, as “Articles 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: Other”, 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.Please note that the additional duties imposed by headings 9903.88.01, 9903.88.02, 9903.88.03, and 9903.88.04 do not apply to goods for which entry is properly claimed under a provision of chapter 98 of the HTSUS, except for goods entered under headings 9802.00.40, 9802.00.50, 9802.00.60, and 9802.00.80. For headings 9802.00.40, 9802.00.50, and 9802.00.60, the additional duties apply to the value of repairs, alterations, or processing performed abroad, as described in the applicable heading. For heading 9802.00.80, the additional duties apply to the value of the article less the cost or value of such products of the United States, as described in heading 9802.00.80. 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 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 Christina Allen at [email protected]. Sincerely, Steven A. Mack Director National Commodity Specialist Division