The tariff classification of plastic bedpans from China

N339236 April 12, 2024 CLA-2-39:OT:RR:NC:N4:422 CATEGORY: Classification TARIFF NO.: 3924.90.5650; 9903.88.15 Ms. Blanca Esteban Improving Mobility Development, SL (Sector Sanitario) Carrer de la Coma, 19Valencia 46160Spain RE:  The tariff classification of plastic bedpans from China Dear Ms. Esteban: In your letter dated April 2, 2024, you requested a tariff classification ruling.  A sample, photographs, and a user’s manual were submitted with your request. Item #P40005 and Item #P40016 are bedpans.  Item #P40005 is a white bedpan and Item #P40016 is a blue bedpan.  The bedpans are both made of Acrylonitrile Butadiene Styrene (ABS) plastic material.  Each plastic bedpan measures approximately 16.8 inches long by 4.15 inches high by 11 inches wide. In your submission, you requested consideration of a secondary classification for the subject plastic bedpans under 9817.00.96, Harmonized Tariff Schedule of the United States (HTSUS), which applies to articles and parts of articles specifically designed or adapted for the use or benefit of the permanently or chronically physically or mentally handicapped.  Chapter 98, Subchapter XVII, U.S. Note 4(a), HTSUS, defines the term blind or other physically or mentally handicapped persons as including “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.” The primary issue is whether the article is specially designed or adapted for the use or benefit of the handicapped within the meaning of the Nairobi Protocol. To determine whether an article is “specially designed” for the use or benefit of a class of persons to an extent greater than for others, we must examine the following five factors test set used by Customs and Border Protection (CBP) and adopted by the Court of Appeals for the Federal Circuit (CAFC) in Sigvaris, Inc. v. the United States, Court Case 17-2237, dated August 16, 2018. The court case stated that (1) physical properties of the article itself (e.g., whether the article is easily distinguishable in design, form and use from articles useful to non-handicapped persons); (2) presence of any characteristics that create a substantial probability of use by the chronically handicapped, so that the article is easily distinguishable from articles useful to the general public and any use thereof by the general public is so improbable that it would be fugitive; (3) importation by manufacturers or distributors recognized or proven to be involved in this class or kind of articles for the handicapped; (4) sale in specialty stores that serve handicapped individuals; and (5) indication at the time of importation that the article is for the handicapped. In T.D. 92-77, dated August 3, 1992 (26 Customs Bulletin, 240, dated August 26, 1992), Customs set forth its position regarding certain issues arising under the Nairobi Protocol.  The first issue concerned the interpretation of the term specially designed or adapted.  Customs pointed out that a primary factor to be considered in determining whether an article was specially designed and adapted was whether the article was easily distinguishable, by properties of the design and the corresponding use specific to this unique design, from articles useful to non-handicapped individuals.  Therefore, if an article is solely dedicated for use by the handicapped, it is Customs position that this would be conclusive evidence that the article is specially designed or adapted for the handicapped for purposes of the Nairobi Protocol. This office acknowledges that bedpans are useful for the bedridden and those with incontinence problems. However, you have not established that your items were specially designed for those with a permanent or chronic incapacity, as opposed to an acute, but often transient, disability or condition, e.g., a broken leg or pregnancy. Such conditions might also result in a person’s being bedridden in a medical facility or at home or in having an incontinence problem. Articles for acute or transient disability are excluded from subheading 9817.00.96 by application of U.S. Note 4(b)(i), of Chapter 98, Subchapter XVII. Also, note that per Headquarters Ruling Letter 563008, dated May 20, 2004, not all incontinence products are classifiable in 9817.00.96, HTSUS.  Therefore, the secondary classification of subheading 9817.00.96 is precluded. The applicable subheading for the plastic bedpans, Item #P40005 and Item #P40016 will be 3924.90.5650, HTSUS, which provides for “Tableware, kitchenware, other household articles and toilet articles, of plastics: Other: Other. Other.” The rate of duty will be 3.4 percent ad valorem.  Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 3924.90.5650, HTSUS, unless specifically excluded, are subject to an additional 7.5 percent ad valorem rate of duty.  At the time of importation, you must report the Chapter 99 subheading, i.e., 9903.88.15, in addition to subheading 3924.90.5650, HTSUS, listed above. The HTSUS is subject to periodic amendment, so you should exercise reasonable care in monitoring the status of goods covered by the Note cited above and the applicable Chapter 99 subheading.  For background information regarding the trade remedy initiated pursuant to Section 301 of the Trade Act of 1974, including information on exclusions and their effective dates, you may refer to the relevant parts of the USTR and CBP websites, which are available at https://ustr.gov/issue-areas/enforcement/section-301-investigations/tariff-actions and https://www.cbp.gov/trade/remedies/301-certain-products-china, respectively. 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 at https://hts.usitc.gov/.The holding set forth above applies only to the specific factual situation and merchandise description as identified in the ruling request. This position is clearly set forth in Title 19, Code of Federal Regulations (CFR), Section 177.9(b)(1). This section states that a ruling letter is issued on the assumption that all of the information furnished in the ruling letter, whether directly, by reference, or by implication, is accurate and complete in every material respect. In the event that the facts are modified in any way, or if the goods do not conform to these facts at time of importation, you should bring this to the attention of U.S. Customs and Border Protection (CBP) and submit a request for a new ruling in accordance with 19 CFR 177.2. Additionally, we note that the material facts described in the foregoing ruling may be subject to periodic verification by CBP. This ruling is being issued under the provisions of Part 177 of the Customs and Border Protection 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, please contact National Import Specialist Dana L. Giammanco at dana.l.giammanco@cbp.dhs.gov. Sincerely, Steven A. Mack Director National Commodity Specialist Division