The eligibility of wall-mounted shower and tub seats under the Nairobi Protocol from China

N305952 September 11, 2019 CLA-2-98:OT:RR:NC:N3:135 CATEGORY: Classification TARIFF NO.: 9817.00.96 Mr. Joseph Atkins Preferred Bath Accessories Inc. 1031 East Mountain Street Kernersville, NC 27284 RE: The eligibility of wall-mounted shower and tub seats under the Nairobi Protocol from China Dear Mr. Atkins: In your letter dated August 24, 2019, you requested a tariff classification ruling. Part numbers 1800-LS-FDRH-W, 1800-LS-FDLH-W, 1800-LS-CLH-B, and 1800-LS-CRH-B are four styles of pre-assembled, L-shaped shower seats in different configurations (left-hand and right-hand) and colors (white and black). Part numbers 1800-FDTS-28-W and 1800-FDTS-32-W are two styles of pre-assembled tub seats. All seats feature anti-corrosive stainless steel frame construction, a warm to the touch nylon top, and adjustable and flexible feet with a load bearing capacity of 500 lbs. Each seat accompanies two to three decorative flanges, one mounting template, and eight to twelve mounting screws depending on the styles. The seats will be mounted to a wall. You state these products meet all ADA (Americans with Disabilities Act) specifications and are specifically designed for the disabled for use in hotels, assisted living, and other channels that require ADA seat placement. In your submission you asked about the possible applicability of a classification under the Nairobi Protocol for these seats in subheading 9817.00.96, Harmonized Tariff Schedule of the United States (HTSUS), as articles for the handicapped. 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. 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. The wall-mounted shower and tub seats are similar to the shower/bath seats in Headquarters Ruling Letter (“HQ”) 557458 dated October 28, 1993, which applied 9817.00.96, HTSUS, to the seats. Based on the information provided, we find that the subject wall-mounted shower and tub seats are eligible for duty-free treatment under subheading 9817.00.96, HTSUS, which provides for “[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: Other.” No Merchandise Processing Fee (MPF) will apply to the imported product. 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 [email protected]. Sincerely, Steven A. Mack Director National Commodity Specialist Division