Eligibility of molecular sieves for duty-free tariff treatment under the Nairobi Protocol; 9817.00.96; specially designed or adapted for the handicapped; parts

N349958 July 16, 2025 OT:RR:NC:N3:139 CATEGORY: Classification Érola Sabatino Arkema Inc. 900 First Avenue King of Prussia, PA 19446 RE: Eligibility of molecular sieves for duty-free tariff treatment under the Nairobi Protocol; 9817.00.96; specially designed or adapted for the handicapped; parts Dear Ms. Sabatino: This is in response to your letter dated June 9, 2025, an earlier submission and several electronic communications requesting a binding ruling regarding the eligibility of molecular sieves for duty-free treatment under subheading 9817.00.96, Harmonized Tariff Schedule of the United States (HTSUS). The items under consideration are molecular sieves which you state will be used with oxygen concentrators. You state the sieves work by retaining or adsorbing nitrogen in the air flow, increasing the oxygen flow content and assisting the oxygen concentrator end users who have chronic difficult breathing conditions to survive. The items under review for purposes of this letter are a series of products which have the designation of Nitroxy® Molecular Sieves. Specifically, this letter will address those sieves which have the product names of SILIPORITE NITROXY SXSDM, SILIPORITE NITROXY REVOLUTION, SILIPORITE NITROXY EFFICIENCY, SILIPORITE NITROXY 51, and SILIPORITE NITROXY 5. You state that these products are comprised of zeolites, clay like materials, other types of inorganic compounds, and mixtures of products. You state that the Nitroxy® Molecular Sieves have been designed and manufactured by you to exclusively work in oxygen concentrators. You also state that the Nitroxy® Molecular Sieves cannot be used in other non-medical applications and that non-medical-grade oxygen molecular sieves cannot be used in an oxygen concentrator as they would simply not work. You also state that you plan to import the Nitroxy® Molecular Sieves from your related company in France. They would be imported in bulk, packed in drums with net weights of either 15kg/33.069lbs or 125kg/275.575lbs. After importation, the drums would be sold to domestic manufacturers or importers of oxygen concentrators for placement in their products. As imported, the instant molecular sieves have certain physical features that differentiate them from other molecular sieve type products that your company offers. They include but are not limited to such features as nitrogen adsorption capacity, selectivity (which is the kinetics of adsorption or how quickly it can adsorb nitrogen vs. oxygen), and how well the molecular sieve beads can withstand friction (which impacts the lifespan of the product). You have provided us with product brochures, a safety data sheet, technical data sheets as well as a chart with a side-by-side comparison of the specifications of one of the instant medical-grade oxygen sieves with one of your standard non-medical grade sieves. Subheading 9817.00.96, HTSUS, covers: “[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 articles: [o]ther.” 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. 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. In Sigvaris, Inc. v. United States, 227 F. Supp 3d 1327, 1336 (Ct. Int’l Trade 2017), aff’d, 899 F.3d 1308 (Fed. Cir. 2018), the U.S. Court of International Trade (CIT) explained that “specially” means “to an extent greater than in other cases or towards others” and “designed” means something that is “done, performed, or made with purpose and intent often despite an appearance of being accidental, spontaneous, or natural.” We must first evaluate “for whose, if anyone’s, use and benefit is the article specially designed,” and then, whether “those persons [are] physically handicapped .” Sigvaris, 899 F.3d at 1314. The Court of Appeals for the Federal Circuit (CAFC) clarified in Sigvaris, 899 F.3d at 1314-15 that to be “specially designed,” the merchandise “must be intended for the use or benefit of a specific class of persons to an extent greater than for the use or benefit of others” and adopted the five factors used by U.S. Customs and Border Protection (CBP): (1) the physical properties of the article itself (i.e., whether the article is easily distinguishable by properties of the design, form, and the corresponding use specific to this unique design, from articles useful to non-handicapped persons); (2) whether any characteristics are present 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) whether articles are imported by manufacturers or distributors recognized or proven to be involved in this class or kind of articles for the handicapped; (4) whether the articles are sold in specialty stores which serve handicapped individuals; and, (5) whether the condition of the articles at the time of importation indicates that these articles are for the handicapped. In this case, the merchandise at issue are said to be a specially designed component part of oxygen concentrators. We note that subheading 9817.00.96, HTSUS, provides duty-free treatment not only to articles that are specifically designed or adapted for the use or benefit of handicapped persons, but also for “parts and accessories…that are specially designed or adapted for use in the foregoing articles.” See also Starkey Laboratories, Inc. v. United States, 6 F. Supp. 2d 910 (Ct. Int’l Trade 1998) (imported parts of hearing aids were eligible for duty-free treatment under subheading 9817.00.96, HTSUS). Oxygen concentrators and their parts have been found to be an article specially designed or adapted for the handicapped eligible for preference under the subheading 9817.00.96 See Rulings H301481 (portable oxygen concentrators), and N346957 (stationary oxygen concentrators). While it has been determined that oxygen concentrators qualify for classification in subheading 9817.00.96, HTSUS, the parts of such items, such as the molecular sieves at issue, do not automatically qualify for such treatment. We must examine whether the instant molecular sieves are specially designed or adapted for use in oxygen concentrators and therefore eligible for classification in subheading 9817.00.96, HTSUS. In considering whether the molecular sieves qualify as a part of the oxygen concentrators under subheading 9817.00.96, HTSUS, we consider whether it would be considered a part of the POC under a general analysis of the classification of parts. With regard to the classification of the molecular sieves at issue, we note that Presidential Proclamation 6821 of September 12, 1995, 60 Fed. Reg. 47633 (September 13, 1995), expanded the scope of subheadings 9817.00.92 through 9817.00.96 to include “parts or accessories” of such articles. Thus, the issue before us is whether the instant constitutes a “part” of an article “specially designed or adapted” for the handicapped. The traditional rule in this regard is "that a 'part' of an article is something necessary to the completion of that article. It is an integral, constituent, or component part, without which the article to which it is joined could not function as such article." See United States v. Willoughby Camera Stores, Inc., 21 C.C.P.A. 332, T.D. 46851 (1933), which held that a tripod is not “part” of a camera. Moreover, because a determination regarding whether an item constitutes a "part" is highly fact specific, the courts and CBP have applied other criteria to make this determination. The courts have held that "the mere fact that two articles are designed to be used together is not alone sufficient to establish that either is a part of the other, or of their combined entity." Westfield Manufacturing Company v. United States, 191 F. Supp. 578 (1961). In Schick X-Ray Co. v. United States, 271 F. Supp. 305 (1967), the court stated that, “[m]any …objects, despite the fact that their usefulness is only in conjunction with other articles, retain a separateness of identity and a functional self-sufficiency which preclude their classification as parts.” We must also consider the case law with regard to the particular provision for articles for the use or benefit of the handicapped. In Starkey Laboratories, Inc. v. United States, F. Supp. 2d 910 (Ct. Int’l Trade 1998), the court found certain parts of hearing aids to be specially designed or adapted for the use or benefit of deaf persons. The court found that the parts (inter alia, potentiometers, trimmers, variable resistors, coils, microphones, receivers, hearing aid body parts and hearing aid subassemblies including microphones or receivers) were specially designed or adapted in that the parts had to adhere to certain design limitations, i.e., the merchandise had to be resistant to humidity and moisture; it had to be manufactured to fine tolerances; and, for those components that used power, their power consumption had to be designed to be low as that is needed to prolong battery life in hearing aids. In applying the principles set forth above, we find that the molecular sieves at issue constitute a part of oxygen concentrators. Certain measurement ratios (i.e. its nitrogen adsorption capacity, its N2O2 selectivity measurement, the individual sieve article size ranges, the sieve’s bulk crush strength, it’s percentage loss on ignition value, its percentage water content by weight, and its bulk density measurement) provided on the technical data sheets for each of the individual products of the Nitroxy® Molecular Sieves were found to be within the same ranges as the specifications of other molecular sieve manufacturer’s products that are designed for oxygen concentrators. The marketing and product information provided with the submission show that the Nitroxy® Molecular Sieves under review are intended for business entities involved with oxygen concentrators. Based on this evidence, we are convinced that the Nitroxy® Molecular Sieves features are specific to its application with oxygen concentrators. Accordingly, consistent with prior court decisions and CBP rulings, we conclude that the molecular sieves at issue qualify as parts that are specially designed or adapted for use in oxygen concentrators, which themselves are an article specially designed or adapted for the physically handicapped within the meaning of Nairobi Protocol, Annex E, to the Florence Agreement, as codified in the Education, Scientific, and Cultural Materials Act of 1982. On the basis of the information submitted, the molecular sieves with the product names of SILIPORITE NITROXY SXSDM, SILIPORITE NITROXY REVOLUTION, SILIPORITE NITROXY EFFICIENCY, SILIPORITE NITROXY 51, and SILIPORITE NITROXY 5.are found to be specially designed for use in oxygen concentrators as a “part” of those articles and are eligible for duty-free treatment under subheading 9817.00.96, HTSUS. 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 John Bobel at john.bobel@cbp.dhs.gov. Sincerely, (for) Denise Faingar Acting Director National Commodity Specialist Division