Subheading 9817.00.96, HTSUS; Wall-Mounted Folding Shower Seat

HQ H319961 October 13, 2021 OT:RR:CTF:VS H319961 AP CATEGORY: Classification Ms. Amy Lauziere Senior Trade Advisor A.N. Deringer Inc. 173 West Service Road Champlain, New York 12919 RE: Subheading 9817.00.96, HTSUS; Wall-Mounted Folding Shower Seat Dear Ms. Lauziere: This is in response to your July 15, 2021 ruling request, filed on behalf of HealthCraft Products Inc. (“importer”), regarding the applicability of subheading 9817.00.96, Harmonized Tariff Schedule of the United States (“HTSUS”), to a wall-mounted folding shower seat. The Chemicals, Petroleum, Metals and Miscellaneous Articles Branch within Regulations and Rulings, Office of Trade will examine the proper classification of the shower seat and will issue a separate ruling on the primary classification. This ruling is limited to the eligibility of the shower seat under subheading 9817.00.96, HTSUS. FACTS: The importer designs bathroom fixtures for persons with mobility issues. The merchandise at issue is a wall-mounted folding shower seat of corrosion resistant stainless steel frame construction, with a laminated bamboo backrest, and seating surface, known as the Invisia Serena-Seat Pro. It consists of a seat assembly, top and bottom wall panels, and eight wood screws. The seating surface is available in 18 or 26 inches, and has a maximum weight capacity of 500 lbs. The seating surface and the bamboo backrest are available in several stain colors. The frame finishes include brushed stainless, chrome polish, matte black, and oil rubbed bronze. The installation involves permanently mounting the shower seat directly to a structural wall with fasteners. The shower seat folds up against the wall when not in use. The seat features a friction hinge that prevents it from inadvertently falling down. The shower seat is designed to provide shower seating support to those with reduced mobility. The shower seat is compliant with the Americans with Disabilities Act (“ADA”) 610.4 requirements for structural strength. The shower seat is sold to access remodelers to adapt homes for elderly and disabled persons, and to medical equipment stores. ISSUE: Whether the subject wall mounted folding shower seat is eligible for duty-free treatment under subheading 9817.00.96, HTSUS. LAW AND ANALYSIS: The Nairobi Protocol to the Agreement on the Importation of Educational, Scientific and Cultural Materials of 1982, Pub. L. No. 97-446, 96 Stat. 2329, 2346 (1983) 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. Subheading 9817.00.96, HTSUS, covers: “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 articles . . . Other.” In Sigvaris, Inc. v. United States, 227 F. Supp 3d 1327, 1336 (CIT 2017), aff’d, 899 F.3d 1308 (Fed. Cir. 2018), the U.S. Court of International Trade (“CIT”) explained that: The term “specially” is synonymous with “particularly,” which is defined as “to an extent greater than in other cases or towards others.” Webster’s Third New International Dictionary 1647, 2186 (unabr. 2002). The dictionary definition for “designed” is something that is “done, performed, or made with purpose and intent often despite an appearance of being accidental, spontaneous, or natural.” Webster’s Third New International Dictionary 612 (unabr. 2002). 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. Thus, eligibility within subheading 9817.00.96, HTSUS, depends on whether the article is “specially designed or adapted for the use or benefit of the blind or physically and mentally handicapped persons,” and whether it falls within any of the enumerated exclusions under U.S. Note 4(b), Subchapter XVII, Chapter 98, HTSUS. 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. While the HTSUS does not establish a clear definition of substantial limitation, in Sigvaris, 227 F. Supp 3d at 1335, the CIT explained that “[t]he inclusion of the word ‘substantially’ denotes that the limitation must be ‘considerable in amount’ or ‘to a large degree.’” 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 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. This definition of ‘specially designed’ is consistent with factors that Customs uses in discerning for whose use and benefit a product is ‘specially designed” … we adopt them in our analysis ….” Id. at 1314-15. In Danze, Inc. v. United States, 319 F. Supp. 3d 1312, 1326 n.22 (CIT 2018), the CIT held that ADA compliance alone was insufficient to show that an item was “specifically designed or adapted” for the handicapped under subheading 9817.00.96, HTSUS. Thus, to determine whether the wall-mounted folding shower seat 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 used by U.S. Customs and Border Protection (“CBP”) and adopted by the CAFC in Sigvaris, 899 F.3d at 1314-15: (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. See also T.D. 92-77 (26 Cust. B. 240 (1992)). CBP has previously considered whether similar shower seats are eligible for treatment under subheading 9817.00.96, HTSUS. In Headquarters Ruling Letter (“HQ”) 557458, dated Oct. 28, 1993, CBP found that wall-mounted shower seats were “specially designed or adapted” because the likelihood of use by the general public was remote. In New York Ruling Letter (“NY”) N305952, dated Sept. 11, 2019, CBP concluded that wall-mounted shower seats similar to the ones on HQ 557458 were eligible for treatment under subheading 9817.00.96, HTSUS. In NY N052324, dated Mar. 3, 2009, CBP determined that shower seats mounted to the wall were specially designed or adapted for the use or benefit of the permanently or chronically physically or mentally handicapped because the “fact that they are mounted to the wall helps to distinguish them from items for those with temporary disabilities or who just prefer to shower while seated.” In analyzing the five factors adopted by the CAFC in Sigvaris and consistent with CBP precedent, we note that the instant shower seat is different from an ordinary shower chair because it is mounted to the wall to provide reliable and secure seating support for people with reduced mobility and is manufactured in compliance with ADA’s 610.4 structural strength requirements. A friction hinge ensures that the seat will not inadvertently lower when it is folded up. The likelihood of the general public using the shower seat is remote because it is mounted to the wall and is less likely to be used by people with temporary or no disabilities who prefer to sit while showering. See HQ 557458; NY N305952; NY N052324. The shower seat is marketed as designed for people with limited mobility who have trouble standing and is sold to access remodelers to adapt homes for elderly and disabled persons, and to medical equipment stores. On balance, the five factors adopted by the CAFC in Sigvaris, 899 F.3d at 1314-15, weigh in favor of a determination that the wall-mounted shower seat is “specially designed” for the use or benefit of persons with chronic reduced mobility to an extent greater than for the general public. Next, we conclude that persons with chronic reduced mobility are physically handicapped. Chronic reduced mobility is a permanent physical impairment, which substantially limits one’s major life activities (e.g., walking and standing in the shower) under U.S. Note 4(a), Subchapter XVII, Chapter 98 because the limitation is “considerable in amount” or “to a large degree.” Sigvaris, 227 F. Supp 3d at 1335. Accordingly, the wall-mounted folding shower seat is “specially designed” for “the use or benefit of … physically … handicapped persons” and is eligible for duty-free treatment under subheading 9817.00.96, HTSUS. HOLDING: The subject wall-mounted folding shower seat is eligible for duty-free treatment under subheading 9817.00.96, HTSUS. Please note that 19 C.F.R. § 177.9(b)(1) provides that “[e]ach ruling letter is issued on the assumption that all of the information furnished in connection with the ruling request and incorporated in the ruling letter, either directly, by reference, or by implication, is accurate and complete in every material respect. The application of a ruling letter by [CBP] field office to the transaction to which it is purported to relate is subject to the verification of the facts incorporated in the ruling letter, a comparison of the transaction described therein to the actual transaction, and the satisfaction of any conditions on which the ruling was based.” A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction. Sincerely, Monika R. Brenner, Chief Valuation and Special Programs Branch