N312182

N312182 June 12, 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 a SimplyGo Tank from China. Dear Mr. Leo: In your letter dated June 1, 2020, on behalf of Respironics, Inc., you requested a tariff classification ruling. The merchandise under consideration is a SimplyGo Tank (part no. #1113572 a.k.a. A-08-0363) used exclusively with a SimplyGo Mini device, which is a portable oxygen concentrator for breathing impaired persons. The SimplyGo Tank is a palm-sized, blow molded, plastic reservoir that holds the oxygen gas generated by the concentrator before it is provided to the patient. It is rectangular in shape curving on one side and has three built-in tubing connections on the top panel in the perpendicular position and four cutout holes. The tank is a passive pressure vessel reservoir for oxygen which is supplied with oxygen from the device’s sieve beds via a check valve to prevent flow of oxygen back to the sieve bed. The oxygen leaves the product tank through a proportional valve which regulates the flow of oxygen for specific rates of continuous flow, or in specific bolus volumes for a pulsed flow. The tank helps to eliminate the pulsation from the device and provide a smooth flow of oxygen to the patient. The applicable subheading for the SimplyGo Tank 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 the SimplyGo Tank 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 the SimplyGo Tank is “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 a portable oxygen concentrator is an article designed or adapted for the use and benefit of physically handicapped persons and qualifies for duty-free treatment under subheading 9817.00.96, HTSUS. See Headquarters ruling H301481 (dated Jun 14, 2019). The SimplyGo Mini device is a portable oxygen concentrator for breathing impaired persons and therefore it qualifies for duty-free treatment under subheading 9817.00.96, HTSUS. Next, we must examine whether the SimplyGo Tank is specially designed or adapted for use in the SimplyGo Mini device and eligible for classification in subheading 9817.00.96, HTSUS. You states that “[t]he size and shape of the tank was specifically designed to work with the SimplyGo device. The size is unique[ly] paired with the amount of oxygen created by the SimplyGo concentrator. If it is smaller, the supply of oxygen would pulsate. Any larger and the flow would be too low to the patient. The shape was designed to fit within the SimplyGo device and around the other internal components.” In consideration of the information supplied, we believe that the SimplyGo Tank is a part specially designed or adapted for use in the SimplyGo Mini 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 fei.chen@cbp.dhs.gov. Sincerely, Steven A. Mack Director National Commodity Specialist Division