The tariff classification of dynamic arm supports and eligibility for preferential tariff treatment under the Nairobi Protocol from Canada

N295541 April 16, 2018 CLA-2-90:OT:RR:NC:N1:135 CATEGORY: Classification TARIFF NO.: 9021.10.0090; 9817.00.96 Ms. Anna Wierzbowska-Fuller A. N. Deringer Inc. 173 West Services Road Champlain, NY 12919 RE: The tariff classification of dynamic arm supports and eligibility for preferential tariff treatment under the Nairobi Protocol from Canada Dear Ms. Wierzbowska-Fuller: In your letter dated March 27, 2018, on behalf of Kinova Robotics, you requested a tariff classification ruling. The products at issue are identified as four models of dynamic arm supports. Based on the information provided, they are assistive technology products, which allow people with limited arm and shoulder function to move their arms and hands freely. The arm supports use mechanisms, such as a spring compensation mechanism, to compensate for the weight of a user’s arm. They do not take over any arm function. The user makes the movements him or herself, using his or her own shoulder and arm strength. The products support “the arm through all movements within a 3D region.” According to the Kinova’s website, the arm supports are “used by individuals who are challenged by muscular weakness or paralysis but can still grab objects. Most have neurological or neuromuscular disorders.” They are “designed for people living with upper body mobility restrictions but still have the use of their hands and fingers to grip and manipulate objects.” They can be mounted on wheelchairs, chairs, tables or on a movable carriage and support an arm to perform daily activities such as eating, drinking, personal care, typing, reaching objects, and other activities. Kinova® Dynamic Arm Support O110 is an entry-level, non-electric fully mechanical model and designed for mounting on a table. It consists of four main components, namely, a table clamp, links, a base (including an adjustment ring and an upper arm), and a brace (where the arm rests while the arm support is in use). The housing material of the product is made of die cast aluminum. The housing size in upwards position measures 17 cm x 10 cm x 85 cm (W x D x H). The arm support can compensate an arm weight ranging from 900 grams up to 4800 grams. Kinova® Dynamic Arm Support O510 is an entry-level, fully mechanical model and designed for use on a power wheelchair. It consists of a rotation frame, a base (including scale division, an indicator, and an adjustment knob), a main axle, joints, an upper arm, and a brace (where the arm rests while the arm support is in use). The housing material of the product is made of die cast aluminum and ABS plastic. The housing size in upwards position measures 17 cm x 10 cm x 85 cm (W x D x H). The arm support can compensate an arm weight ranging from 900 grams up to 4500 grams, or 600 grams up to 2500 grams for a light version. Kinova® Dynamic Arm Support O530 is a mid-range model with a power activated adjustment of the mechanical assistance by using buttons. The product has to be connected to a 24 volt battery system of a power chair. It consists of a rotation frame, a base, a main axle, joints, an upper arm, and a brace (where the arm rests while the arm support is in use). The housing material of the product is made of die cast aluminum and ABS plastic. The housing size in upwards position measures 17 cm x 10 cm x 85 cm (W x D x H). The arm support can compensate an arm weight ranging from 900 grams up to 4500 grams, or 600 grams up to 2500 grams for a light version. Kinova® Dynamic Arm Support O540 provides multiple powered functions activated by a controller to increase the level of autonomous control of the arm’s range of motion by the end use. The power activated functions are weight compensation adjustment (increase/decrease), tilt control (forward and backward), horizontal/vertical brake, and rotation brake. It consists of a rotation frame, a base, a main axle, joints, an upper arm, and a brace (where the arm rests while the arm support is in use). The housing material of the product is made of die cast aluminum and ABS plastic. The housing size in upwards position measures 17 cm x 10 cm x 85 cm (W x D x H). The arm support can compensate an arm weight ranging from 600 grams up to 4500 grams. The applicable subheading for the four Kinova® Dynamic Arm Supports will be 9021.10.0090, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Orthopedic appliances, including crutches, surgical belts and trusses; splints and other fracture appliances; artificial parts of the body; hearing aids and other appliances which are worn or carried, or implanted in the body, to compensate for a defect or disability; parts and accessories thereof: Orthopedic or fracture appliances, and parts and accessories thereof: Other.” The general rate of duty will be free. You also requested consideration of the four Kinova® Dynamic Arm Supports 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 arm supports in question is whether they are "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. Based on the information supplied, it is the opinion of this office that a secondary classification will apply for the four Kinova® Dynamic Arm Supports 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. 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