The tariff classification of wheelchair lifts and carriers from China

N306542 October 31, 2019 CLA-2-87:OT:RR:NC:N2:206 CATEGORY: Classification TARIFF NO.: 8428.90.0290; 8708.99.8180; 9817.00.96 Desiree L. Pasbrig Motis Brands N102 W19400 Willow Creek Way Germantown, WI 53022 RE: The tariff classification of wheelchair lifts and carriers from China Dear Ms. Pasbrig: In your letter dated October 4, 2019, you requested a tariff classification ruling. The items under consideration have been identified as an ESC400 Silver Spring Premium Electric Power Chair and Scooter Lift and Carrier, a MWCC Manual Wheelchair Carrier, and a SC500-AF Silver Spring Deluxe Aluminum Folding Scooter & Wheelchair Carrier. The ESC400 model is designed to be attached to larger vehicles such as SUVs and pick-up trucks with Class III or IV hitches to transport mobility scooters and wheelchairs.  The ESC400 has a capacity of 300 pounds and is made of aluminum and steel.  The patented electric lift design allows for access to a trunk or tailgate with the push of a button.  The 39’’ by 27” platform allows the scooter or wheelchair to be loaded from either side.  When not in use, the platform folds up vertically against the back of the vehicle.  The MWCC model is designed to quickly load and carry a manual wheelchair on the back of a vehicle with Class I or II 1-1/4" and Class III and IV 2" hitch receivers. The powder-coated steel platform tilts to allow rolling the wheelchair on and off the carrier. This carrier is easily mounted on to the back of any vehicle with a hitch ball mount. Once loaded, the adjustable stability arm keeps the wheelchair in place during transportation, eliminating the need for tie-down straps. This carrier folds down for access to the trunk or hatchback when not in use. It also folds up against the back of the vehicle when unloaded for safer driving and parking. The MWCC has a weight capacity of 100 pounds. The SC500-AF model is designed for transporting a power scooter or a wheelchair on the back of a vehicle using a Class III or IV 2" hitch receiver. The unique three-position loading ramp folds out to a fully-extended length of 59-1/4", folds flat into the carrier when not in use, and remains upright to hold the scooter in place during transport. Additionally, the carrier itself folds flat against the rear of your vehicle for extra clearance in parking lots and garages. The carrier is made of a lightweight aluminum and powder-coated steel, and has a weight capacity of 500 pounds. You suggest classifying all three models in subheading 8708.99.8180, Harmonized Tariff Schedule of the United States (HTSUS), which provides for parts of vehicles. This office disagrees, in part. Classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRIs) taken in order. GRI 1 provides that the classification is determined first in accordance with the terms of the headings and any relative section and chapter notes. Section Note 2(e) to Section XVII excludes machines and apparatus of headings 8401 to 8479. Since ESC400 model is a mechanical device provided for in heading 8428, HTSUS, classification of this lift-carrier in heading 8708, HTSUS, is precluded. The applicable subheading for the ESC400 Silver Spring Premium Electric Power Chair and Scooter Lift, will be 8428.90.0290, HTSUS, which provides for “Other lifting, handling, loading or unloading machinery (for example, elevators, escalators, conveyors, teleferics): Other machinery … Other”.  The rate of duty will be Free. The applicable subheading for the MWCC Manual Wheelchair Carrier and the SC500-AF Silver Spring Deluxe Aluminum Folding Scooter & Wheelchair Carrier will be 8708.99.8180, HTSUS, which provides for “Parts and accessories of the motor vehicles of heading 8701 to 8705: Other parts and accessories: Other: Other: Other: Other: Other”. The general rate of duty will be 2.5 percent ad valorem. Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 8428.90.0290 and 8708.99.8180, HTSUS, unless specifically excluded, are subject to an additional 25 percent ad valorem rate of duty.  At the time of importation, you must report the Chapter 99 subheading, i.e., 9903.88.01, in addition to subheading 8428.90.0290, HTSUS, and 9903.88.03, in addition to subheading 8708.99.8180, 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, 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. You also request consideration of the wheelchair lifts and carriers under the Nairobi Protocol. 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. The primary issue is whether Tilt-a-Rack ramps are specially designed or adapted for the “use or benefit of the handicapped” and whether parts and accessories that are specially designed or adapted for use in the foregoing article fall within the meaning of Nairobi Protocol. 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. In HQ 556449, dated May 5, 1992, CBP set forth five factors it would consider in making this case-by-case determination.  The same factors are relevant in determining whether a part is “specially designed or adapted” for an article for the use or benefit of handicapped persons.  These factors include:  (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.Based on the information supplied, the wheelchair lifts and carriers satisfy the 5 factors set out by CBP. As a result, it is the opinion of this office that a secondary classification will apply for all three models in subheading 9817.00.96, HTSUS, as “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 article: Other”, free of duty and the Merchandise Processing Fee (MPF). 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.Please note that the additional duties imposed by headings 9903.88.01, 9903.88.02, 9903.88.03, and 9903.88.04 do not apply to goods for which entry is properly claimed under a provision of chapter 98 of the HTSUS, except for goods entered under headings 9802.00.40, 9802.00.50, 9802.00.60, and 9802.00.80. For headings 9802.00.40, 9802.00.50, and 9802.00.60, the additional duties apply to the value of repairs, alterations, or processing performed abroad, as described in the applicable heading. For heading 9802.00.80, the additional duties apply to the value of the article less the cost or value of such products of the United States, as described in heading 9802.00.80. 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, please contact National Import Specialist Liana Alvarez at liana.alvarez@cbp.dhs.gov. Sincerely, Steven A. Mack Director National Commodity Specialist Division