CLA-2-59:OT:RR:NC:N3:350
Mr. James Burritt
DSV Air & Sea Inc.
1425 Corporate Center Drive
San Diego, California 92154
RE: The tariff classification of a textile air filter from China
Dear Mr. Burritt:
In your correspondence dated March 30, 2021, you requested a tariff classification ruling by providing our office with additional requested information, on behalf of your client, ResMed Corp. A new control number was assigned to your request on March 31, 2021. Samples of the air filter were provided and will be retained by this office.
In your original submission, you indicate the product is intended to be used in conjunction with a continuous positive airway pressure (“CPAP”) machine. You indicate that the air filter, marked as part “36851” on its packaging, also referred to as “Part no. 36851/R360-7221,” is an air filter that is used to clean the air of particulates (dust and pollen) as it moves through the CPAP machine. The air filter is said to be composed wholly of polyester and is custom fitted to the necessary size for the S9 and Air10 CPAP machine and will be imported from China. You state there is no other use for the air filters. Our observations indicate that the each of the four corners of the nonwoven air filters have been rounded and the edges have been heat sealed and are visibly tapered.
In a previous submission, you suggested that the air filter should be classified in subheading 9019.20.0000, HTSUS, which provides for “Ozone therapy, oxygen therapy, aerosol therapy, artificial respiration or other therapeutic respiration apparatus; parts and accessories thereof.” We disagree. It is precluded from Chapter 90 per note 1(a) to the chapter, which states that Chapter 90 does not cover “[a]rticles of a kind used in machines, appliances or for other technical uses, of … textile material (heading 5911).” Similar textile air filters have been previously found to be classified in heading 5911, HTSUS.
The applicable subheading for air filter part no. 36851/R360-7221 will be 5911.90.0080, HTSUS, which provides for “Textile products and articles, for technical uses, specified in note 7 to this chapter: Other: Other.” The rate of duty will be 3.8 percent ad valorem.
In your submission, you also request consideration for a secondary classification of 9817.00.96, HTSUS, under the Nairobi Protocol. Subheading 9817.00.96 allows for duty free treatment of articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons, and parts and accessories that are specially designed or adapted for use in the foregoing articles. 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."
Customs and Border Protection has previously determined that the CPAP devices designed for the treatment of sleep apnea qualify for duty-free treatment under subheading 9817.00.96, HTSUS. See NY ruling N059778 (dated May 29, 2009). In this case, we believe that the air filters are essential to the filtration function of the CPAP devices. The filters have been specially designed or adapted for use in the S9 and Air10 CPAP devices at the time of importation and are therefore eligible for classification in subheading 9817.00.96, HTSUS, which provides for “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.” The rate of duty will be free. 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 the World Wide Web at http://www.usitc.gov/tata/hts/.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
This ruling is being issued under the assumption that the subject goods, in their condition as imported into the United States, conform to the facts and the description as set forth both in the ruling request and in this ruling. In the event that the facts or merchandise are modified in any way, you should bring this to the attention of Customs and you should resubmit for a new ruling in accordance with 19 CFR 177.2. You should also be aware that the material facts described in the foregoing ruling may be subject to periodic verification by Customs.
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 Michael Capanna at [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division