OT:RR:CTF:VS H352448 ACH

Lydia C. Pardini
Polsinelli PC
1401 Eye Street NW Ste 800
Washington, DC 20005

RE: Affirmation of NY N351167; Applicability of Subheading 9817.00.96, HTSUS; NeoMed Enteral Feeding Devices

Dear Ms. Pardini:

This is in response to your request for reconsideration, on behalf of Avanos Medical, Inc., dated September 2, 2025, of New York Ruling Letter (“NY”) N351167, dated August 4, 2025, regarding the eligibility of NeoMed Enteral Feeding Devices (“Feeding Devices”), including the NeoMed Enteral Feeding Tube (“Tube”), the NeoMed Enteral Feeding Syringe (“Syringe”), and the NeoMed Enteral Extension Set (“Extension Set”) for subheading 9817.00.96, Harmonized Tariff Schedule of the United States (“HTSUS”), treatment. For the reasons set forth below, we affirm NY N351167.

Avanos provided the following information in their request for reconsideration:

The NeoMed line consists of a feeding tube, syringe, and extension set. All of the components are for feeding-impaired infants with features designed to maintain sterility in sensitive Neonatal Intensive Care Unit (“NICU”) environments.

The tube is specifically intended for use in newborns who require continuous feedings via the nasogastric or oral-gastric pathway. This includes specialized, marked tube sections of various lengths and sizes with a specially designed connector. The connectors come in both Enteral-Fit-compatible (“ENFit-compatible”) and non-ENFit-compatible forms. While ENFit- compatible connections offer enhanced safety with features designed to reduce the risk of misconnections, the non-ENFit compatible connections are also designed to interface with the related components in the system. The ENFit-compatible connectors are designed to secure with the syringe. The specialized ENFit-compatible syringe delivers nutrition to the patient’s stomach through the tube. The tube’s “Instructions for Use” indicate that it is designed to last over 30 days, but a replacement tube may be needed if nasogastric or oral-gastric feeding is required beyond 30 days either as a result of co-existing chronic conditions or due to other delays in reaching young infanthood.

The syringe is used as a dispenser, a measuring device, and a fluid transfer device for essential fluid nutrition to be delivered to the intended patients, enterally. The ENFit-compatible tips have grooves that allow them to connect to the ENFit connecter on the tube, thus securing the placement of the syringe. The syringes are available in a variety of volumes as small as 0.5 mL, tailored to the small fluid dosing needs of premature newborns. The NeoMed Enteral Syringes are available by physician prescription only and are labeled per FDA requirements to be handled only by licensed healthcare professionals.

The extension set elongates the connection between the tube and the syringe. The extension sets are designed to connect to a tube. One end of the tube is placed in the patient, and the other end of the extension set has connectors to allow the syringe to deliver nutrition to the patient through the tube. Regardless of the connector type, the extension sets are designed to work with the compatible syringes and tubes.

While the syringe can connect to the tube without the extension set, it is considered an unsafe practice in the NICU. It is stated that connecting a Syringe directly to the feeding tube requires opening the incubator and bringing the caregiver’s hands and equipment in direct contact with the child for prolonged periods of time, which highly increases the risk of contamination. The extension set allows the feeding connection to be made via a porthole.

In NY N351167, U.S. Customs and Border Protection (“CBP”) determined that the tube, syringe, and extension set were not eligible for duty free treatment under subheading 9817.00.96, HTSUS, because these enteral feeding devices for a premature baby were not specially designed or adapted for the handicapped. NY N351167, which took into account the information above, is herein incorporated by reference, but additionally the decision noted that the:

NeoMed Enteral Feeding Syringe … is intended to be used in clinical or home care settings by users ranging from clinicians to laypersons (under the supervision of a clinician) in all age groups….for the extremely small fluid dosing needs of premature newborns.

The products described above are placed through the nasal or oral route at the Neonatal Intensive Care Unit (“NICU”) bedside by trained neonatal clinical staff and are intended exclusively for neonates who are unable to consume nutrition safely or effectively by mouth. You claim that the premature, low birthweight neonates are substantially limited or impaired in the actual physical act of eating, which is a major life activity.

Taking into account information on the March of Dimes’ website (See https://www.marchofdimes.org/find-support/topics/neonatal-intensive-care-unit-nicu/common- conditions-treated-nicu (last visited 7/29/2025), specifically a webpage titled “Common conditions treated in the NICU,” NY N351167 noted the common feeding problems for babies in the NICU, and the use of tube feeding or IV nutrition. Furthermore, referencing another

2 website, NY N351167 noted that “[e]nteral tube feeding is commonly used in preterm infants to provide enteral nutrition…. Among methods of nutrition support for preterm infants, enteral tube feeding via a nasogastric or orogastric tube is commonly used in clinical settings.” See https://www.sciencedirect.com/science/article/abs/pii/S0020748922000177 (last visited 7/29/2025).

On March 25, 2026, a meeting was held with representatives from Avanos at our headquarters office to discuss whether the feeding devices were for individuals with acute or transient disabilities. Avanos contends that “feeding impairments that initially required use of NeoMed enteral feeding devices often persist into childhood and adulthood,” and that “feeding impairments beginning at birth and prompting use of NeoMed enteral feeding devices in the NICU continue beyond the hospital into the post-discharge period, even where NeoMed is used as part of a broader continuum of feeding interventions rather than as the only strategy throughout.” Avanos provided the following statistics and information to support their claim:

Children born preterm or with low birth weight are at increased risk for feeding difficulties: studies have shown that 40–45% of premature babies experience feeding problems during the first two years of their lives (Gardner & Hagedorn, 1991). Although many infants are able to achieve satisfactory oral feeding by NICU discharge, Koca (2022) reports that problems with feeding for a notable portion of these children may continue at school age. Furthermore, rates of feeding impairment in childhood are also high, with 25% to 40% of typically developing children (who had been premature babies) and 70% to 80% of children with developmental delays or chronic medical needs having feeding problems (Kleinert 2017; Lefton-Greif 2007). Further, these impairments associated with prematurity can persist into adulthood (Lindström 2007). Each of these individuals likely relied on the NeoMed enteral feeding system at some point during their feeding journey.

For infants and young children who do not improve, evaluation for G-tube placement may occur. As discussed during our meeting, studies show that gastrostomies often occur when a child is one or two years old. In that sense, the population that ultimately requires G-tube support necessarily includes a preceding phase in which NeoMed-type nasogastric feeding support is required, at a minimum, to bridge the infant to that next stage of care; however, even for children that do not require a G-tube placement, other oral feeding supports may still be required to overcome lingering feeding impairments.

These arguments are discussed below.

As NY N351167 provided, subheading 9817.00.96, HTSUS, covers: “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 articles . . . Other.” In Sigvaris, Inc. v. United States, 227 F. Supp 3d 1327, 1336 (CIT 2017), aff’d, 899 F.3d 1308 (Fed. Cir. 2018), the U.S. Court of International Trade (“CIT”) explained that:

3 The term “specially” is synonymous with “particularly,” which is defined as “to an extent greater than in other cases or towards others.” Webster’s Third New International Dictionary 1647, 2186 (unabr. 2002). The dictionary definition for “designed” is something that is “done, performed, or made with purpose and intent often despite an appearance of being accidental, spontaneous, or natural.” Webster’s Third New International Dictionary 612 (unabr. 2002).

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(a), Subchapter XVII, Chapter 98, HTSUS. Based on the language of U.S. Note 4(a), a person suffering from a permanent or chronic eating impairment is physically handicapped.

Subheading 9817.00.96, HTSUS, excludes “(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.” U.S. Note 4(b), Subchapter XVII, Chapter 98, HTSUS. Thus, eligibility within subheading 9817.00.96, HTSUS, depends on whether the article is “specially designed or adapted for the use or benefit of the blind or physically and mentally handicapped persons,” and whether it falls within any of the enumerated exclusions under U.S. Note 4(b), Subchapter XVII, Chapter 98, HTSUS.

Here, the issue is whether the feeding devices are articles for “permanent or chronic” feeding impairments which are eligible for duty-free treatment under subheading 9817.00.96, HTSUS, under U.S. Note 4(a), or whether they are articles for an “acute or transient disability”, and are therefore, excluded under U.S. Note 4(b)(i).

Avanos cites to NY N012277, dated June 27, 2007; NY N351166, dated July 30, 2025; and Headquarters Ruling Letter (“HQ”) H304676, dated March 26, 2020, as examples of instances in which feeding tubes and articles designed to be used with feeding tubes were considered articles for the use of those with chronic or permanent disabilities. NY N102277 addressed a backpack designed for use by those requiring continuous tube feedings. It was designed to hold an enteral feeding pump, food supply, battery, and tubing. CBP determined that because the backpack would not be used by someone who was not bedridden, it was relatively unlikely that it would be used by someone who has an acute or transient disability. In HQ H304676, CBP determined that clothing designed to be compatible with feeding tubes was not for a transient or acute disability because of the significant adaptations contained in the clothing, and that it was highly unlikely that an individual with a transient or acute disability would invest in these garments. NY N351166 addressed another line of feeding devices produced by Avanos, the MIC-KEY G Low-Profile Gastronomy (G) Feeding Tube, “for use in patients who require long-term feeding, are unable to tolerate oral feeding, and require gastric decompression and/or medication delivery into the stomach.” (Emphasis added.) CBP noted the claim “that the above feeding tubes and extension set are used primarily for individuals with long-term or permanent impairments that substantially limit their ability to eat, such as those suffering from neurologic disorders, prolonged gastrointestinal dysfunctions, and congenital or genetic disorders,” and took

4 note of the specific surgical procedures for placement which would normally not occur in individuals without significant gastrointestinal impairment.

CBP has also considered and found other articles to be for use by individuals with permanent or chronic physical impairments. For example, in HQ 556532, dated June 18, 1992, CBP held that canes were predominately used by permanently or chronically handicapped individuals, even though individuals with acute disabilities such as sprained ankles could use them. On the other hand, CBP stated that crutches were predominately used by individuals with acute or transient disabilities, even though they may be used by individuals with chronic or permanent disabilities. In HQ H331366, dated March 24, 2025, CBP distinguished between external defibrillators, used to evaluate and treat an acute or transient disability such as an acute cardiac event, and articles such as pacemakers/internal defibrillators, designed for chronic cardiac issues. HQ H331366 stated, “[s]omeone suffering from an irregular heart rhythm or cardiac event requiring the use of an external defibrillator may go on and live a normal life thereafter.”

Therefore, CBP must determine whether these feeding devices are used predominately by individuals with acute or transient disabilities or by individuals with chronic or permanent disabilities. Oxford Dictionary defines “predominately” as “mostly, mainly.” 1 In order for the feeding devices not to be for acute or transient disabilities, they must be mostly or mainly used for chronic or permanent disabilities.

The evidence provided by Avanos shows the probability that infants initially requiring use of feeding devices will develop permanent or chronic disabilities. However, as with the defibrillators in HQ H331366, the evidence shows that the feeding devices are designed to deal with serious, acute feeding difficulties that may or may not become permanent disabilities. Even though internal defibrillators are “the main treatment for anyone who has survived cardiac arrest[,]” CBP recognized that the temporary nature of external defibrillation rendered it ineligible for duty-free treatment under subheading 9817.00.96, HTSUS. 2

The relationship between the NeoMed feeding devices and the MIC-KEY feeding devices is analogous to the relationship between external and internal defibrillators. Although both devices perform the same function, one is designed for temporary intervention and the other is designed for the ongoing management of what has become a chronic disability. Just as external defibrillators may be used for cardiac arrest that does not result in long term cardiac disability, the NeoMed feeding devices may be used in cases in which a premature newborn requires initial feeding assistance but will go on to be discharged from the NICU with the ability to feed normally.

Although some infants who use the feeding devices will develop chronic feeding issues, the statistics provided by Avanos do not indicate that a majority of newborns requiring tube feeding will have severe, chronic feeding disabilities after their stay in the NICU. Avanos states that 40-45% of premature babies experience feeding problems during the first two years of their lives, and that 25-40% may continue to have feeding problems in childhood. This is less than a

1 https://www.oxfordlearnersdictionaries.com/us/definition/english/predominately. 2 https://www.mayoclinic.org/tests-procedures/implantable-cardioverter-defibrillators/about/pac-20384692.

5 majority, and there is no indication that these feeding problems are chronic or permanent. Further, Avanos states that 70-80% of children with developmental delays or chronic medical needs have feeding problems and that they likely all relied on the NeoMed enteral feeding system in the NICU. This statistic shows the percentage of children with chronic medical needs that had feeding problems in infancy instead of showing the percentage of children who had feeding problems in infancy that then later had chronic medical needs. It does not indicate that these feeding devices are predominately the first treatment for chronic feeding issues rather than a short-term intervention for infants who will not require further intubation. Therefore, we find that these Feeding Devices are not for the use of individuals with chronic or permanent feeding impairments.

Each of the articles considered in NY N012277, NY N351166, and HQ H304676, enabled tube-feeding needed in long-term, daily life. In this case, the feeding devices are used temporarily for newborns in a NICU environment who will then either develop feeding abilities or require long-term feeding devices. Even Avanos’s website makes a distinction between neonatal systems (“babies who need enteral feeding short term to grow and thrive”), short-term feeding systems, and long-term feedings systems such as those addressed in HQ H304676 (“Children & Adults with chronic illnesses/conditions who need enteral feeding for 3-5 years of life”). 3 (emphasis added.)

For these reasons, the Feeding Devices are not eligible for duty-free treatment under subheading 9817.00.96, HTSUS. Accordingly, NY N351167 is hereby affirmed on this issue.

Sincerely,

Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division

3
https://avanos.com/our-brands/specialty-nutrition-systems/#LTF.

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