Importing Face Masks or Respirators? Here are Your Tariff Codes!

An ASA Member is importing face masks and KN95 respirators asked about the proper tariff code for importing them.

Facemasks

There was a 1996 Customs Ruling that categorized surgical masks, but it unfortunately used a tariff code that is no longer part of the harmonized tariff system.  The relevant portion of the ruling states:

“The applicable subheading for the face masks, blue cone mask and shoe cover will be 6307.90.9989, Harmonized Tariff Schedule of the United States (HTS), which provides for other made up articles…Other.”

Don’t bother looking up 6307.90.9989.  It is an outdated code.  But the reference to “other made up articles…Other” gives us a textual reference that we can use to identify the modern corollary tariff code for face masks.

This permitted me to find a very recent Customs Ruling from just two weeks ago.  The ruling applied to FM-002 “civil protective disposable face masks” for non-medical use. These were loose-fitting disposable face mask made of non-woven polypropylene fabric.  They are designed to create a physical barrier between the mouth and nose of the wearer and potential contaminants in the immediate environment.  Customs explained that:

“The applicable subheading for the face mask will be 6307.90.9889, Harmonized Tariff Schedule of the United States (HTSUS), which provides for ‘Other made up articles, including dress patterns: Other: Other: Other: Other: Other.'”

Normally, article like this that are coming from China would be subject to an additional section 301 duty.  There are exceptions that were published in the March 17, 2020 Federal Register.  Face masks under this tariff heading appear to reflect exclusion #9 in the list of exclusions, so they would be exempt from the additional section 301 duties.

So if we have any members importing face masks reflecting the sort of masks described here, then it appears your tariff code is 6307.90.9889, and your articles from China may fall under a temporary exception from the additional tariffs on goods from China.

 

Respirators

The ASA Member also reported plans to import KN95 respirators.  KN95 is the Chinese corollary to the US N95 standard.

There are several Customs Rulings issued to identify the tariff for N95 respirators.  They agree that N95 respirators are subject to the same tariff code as face masks: 6307.90.9889.

 

Don’t Forget the FDA

Face masks and respirators intended to be used for medical uses typically are regulated by the FDA.  They may be subject to pre-market notification.  Those intended for home use with no specific claims of efficacy may be outside fo the FDA’s jurisdiction.  Note that a claim that the masks will prevent Covid-19 would be a medical claim of the sort subject to  FDA jurisdiction!

The FDA has issued emergency guidance permitting the use of N95 respirators for non-medical purposes (like construction).  They have also issued an Emergency Use Authorization permitting the import and use of certain ChInese KN95 respirators.  It is important to read this guidance carefully, as the importer may still be required to demonstrate that the disposable non-NIOSH-approved respirator(s) manufactured in China meet at least one of the FDA’s temporary criteria – this is temporarily done on an expedited basis by sending a request to the FDA via email.  There is a list of Chinese-made respirators that have already been approved by the FDA.

 

Please use this article only as a starting point for your research – make sure you comply with all of the relevant laws and regulations when importing these articles!

About Jason Dickstein
Mr. Dickstein is the President of the Washington Aviation Group, a Washington, DC-based aviation law firm. Since 1992, he has represented aviation trade associations and businesses that include aircraft and aircraft parts manufacturers, distributors, and repair stations, as well as both commercial and private operators. Blog content published by Mr. Dickstein is not legal advice; and may not reflect all possible fact patterns. Readers should exercise care when applying information from blog articles to their own fact patterns.

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