CLA-2-90:OT:RR:NC:N1:135
Mr. Felix Li
DVS Air & Sea Inc.
70 Driver Road, Unit 4
Brampton, ON L6T 5V2
Canada
RE: The tariff classification of the “Crutch Comfort Air Cushion” (Style# MHCRAC) and eligibility for preferential tariff treatment under the Nairobi Protocol from China. Correction to Ruling Number N295805.
Dear Mr. Li:
This replaces Ruling Number N295805, dated April 25, 2018, which contained a clerical error. Your client’s name was misspelled. A complete corrected ruling follows.
In your letter dated April 5, 2018, filed on behalf of Mobb Health Care USA LLLP, you requested a tariff classification ruling.
Descriptive literature and a crutch pad specification sheet as well as a picture of the retail carton label were provided with your letter. The Crutch Comfort Air Cushion is an inflatable cushion designed exclusively for placement atop a crutch to reduce armpit pressure and discomfort and to reduce healing time by increasing rehabilitation compliance. The cushion, which is composed of polyurethane plastic, comes with a hand pump. The crutch is not included.
You suggest classification in subheading 3926.90.7500, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914: Pneumatic mattresses and other inflatable articles, not elsewhere specified or included.” Despite this crutch pad being inflatable and made of plastic, it is also considered an accessory of the crutch. Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes. Where goods cannot be classified solely on the basis of GRI 1 and if the headings and legal notes do not require otherwise, the remaining GRIs may be applied. Heading 3926 provides for “other articles of plastics and articles of other materials of headings 3901 to 3914.” It is a basket provision meant to capture articles of plastics that are not covered elsewhere in the tariff. However, heading 9021 specifically lists crutches and their parts and accessories. It is an eo nomine provision. Note 2 (b) to Chapter 90 states “Other parts and accessories, if suitable for use solely or principally with a particular kind of machine, instrument or apparatus, or with a number of machines, instruments or apparatus of the same heading (including a machine, instrument or apparatus of heading 9010, 9013 or 9031) are to be classified with the machines, instruments or apparatus of that kind.” According to GRI 1, the Crutch Comfort Air Cushion can be classified in heading 9021. Therefore, it will not be classified in heading 3926 since it is covered elsewhere in the tariff.
The applicable subheading for the Crutch Comfort Air Cushion (including the pump when imported packaged for retail sale with the cushion) will be 9021.10.0090, HTSUS, which provides for “Orthopedic appliances, including crutches, surgical belts…: Orthopedic and fracture appliances, and parts and accessories thereof: Other.” The general rate of duty will be free.
You also requested consideration of the Crutch Comfort Air Cushion 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 regarding the Crutch Comfort Air Cushion in question is whether it is "specifically designed or adapted" for the use or benefit of the handicapped 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.
Headquarters Ruling Letter (HRL) 556532, dated June 18, 1992, ruled that canes, including white and red folding canes for the blind or visually impaired, are described by subheading 9817.00.96. On the other hand, HRL 556532 also ruled that the crutches, excluding the forearm crutches, were not described by subheading 9817.00.96 because they are the class or kind that are used by individuals with acute or transient disabilities. Consequently, crutch accessories also would not receive duty-free treatment and they would be excluded from subheadings 9817.00.96 due to US Note (4)(b)(i) to Subchapter 17 to Chapter 98, HTSUS. Also see New York Ruling M87847 dated December 5, 2006. In this case, the crutch pad specification sheet states the product can “reduce healing time by increasing rehabilitation compliance.” This is an indication that the product is advertised to be used by individuals with acute or transient disabilities. Based on this precedent, and the information provided, the Crutch Comfort Air Cushion is not eligible for duty-free treatment under subheading 9817.00.96, HTSUS.
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. Mack
Director
National Commodity Specialist Division