The tariff classification and eligibility under the Nairobi Protocol of wall mounted safety grab bars with accessories from China

N307699 December 13, 2019 CLA-2-83:OT:RR:NC:N1:121 CATEGORY: Classification TARIFF NO.: 8302.41.6080; 8302.50.0000; 9817.00.96 Amy Lauziere A.N. Deringer Inc. 173 West Service Road Champlain, NY 12919 RE: The tariff classification and eligibility under the Nairobi Protocol of wall mounted safety grab bars with accessories from China Dear Ms. Lauziere: In your letter dated November 15, 2019 you requested a tariff classification ruling on behalf of HealthCraft Products Inc. The merchandise under consideration is five styles of wall mounted safety grab bars with accessories. The submitted specification sheets indicate that each safety grab bar in your request meets and exceeds the Americans with Disabilities Act (ADA) requirements. You state that these items are sold to access remodelers to adapt homes for elderly/disabled persons and to medical equipment stores. You also state that HealthCraft Products Inc. manufactures items designed to focus on fall prevention and to promote safety for disabled persons. The first article under consideration is described as the Invisia Corner Shelf, Item INV-CS. This article is a combination grab bar and corner shelf that you state is designed to disguise safety and fall prevention in a bathroom accessory. It is comprised of a removable acrylic shelf tray and a stainless steel rail grab bar that measures 1.25 inches in diameter, 8.8 inches long, and 3 inches high. The rail grab bar is available in the following finishes: Brushed Stainless, Polished Chrome, Oil Rubbed Bronze and Powder Coat Matte Black. The rail grab bar is permanently mounted directly to a structural wall stud with screws. The acrylic corner shelf tray sits on the structure of the rail grab bar and is removable for easy cleaning. You state the Invisia Corner Shelf exceeds ADA guidelines of 250 lbs., with a maximum weight capacity of 500 lbs. and is primarily intended to provide sitting and standing support to disabled people. The secondary function of a shelf is to replace an accessory that would typically be installed in a bathroom. The tray, which holds bottles, is not intended to provide weight support, whereas the rail grab bar diameter is designed at 1.25 inches for the purpose of optimizing grip during assistive transfers of handicapped persons. You state the Invisia Corner Shelf is considerably more expensive than a product with only the secondary feature of a corner shelf that is sold to the general public. The second article under consideration is described as Invisia Shampoo Shelf, Item INV-SHS. This article is a combination grab bar and corner shelf that you state is designed to disguise safety and fall prevention in a bathroom accessory. It is comprised of a removable acrylic shelf tray and a stainless steel rail grab bar that measures 1.25 inches in diameter, 19.75 inches long, 5.05 inches deep, and 5.25 inches high. The rail grab bar is available in the following finishes: Brushed Stainless, Polished Chrome, Oil Rubbed Bronze and Powder Coat Matte Black. The rail grab bar is permanently mounted directly to a structural wall stud with screws. The acrylic shampoo shelf tray sits on the structure of the rail grab bar and is removable for easy cleaning. You state the Invisia Shampoo Shelf exceeds ADA guidelines of 250 lbs., with a maximum weight capacity of 500 lbs. and is primarily intended to provide sitting and standing support to disabled people. The secondary function of a shelf is to replace an accessory that would typically be installed in a bathroom. The tray, which holds bottles, is not intended to provide weight support, whereas the rail grab bar diameter is designed at 1.25 inches for the purpose of optimizing grip during assistive transfers of handicapped persons. You state the Invisia Shampoo Shelf is considerably more expensive than a product with only the secondary feature of a shampoo shelf that is sold to the general public. The third article under consideration is described as Invisia Soap Dish, Item INV-SD. This article is a combination grab bar and soap dish that you state is designed to disguise safety and fall prevention in a bathroom accessory. It is comprised of a circular stainless steel rail grab bar that measures 1.25 inches in diameter, 7.25 inches and 13 inches in height, and an attached acrylic soap dish. The Invisia Soap Dish is available in the following finishes: Brushed Stainless, Polished Chrome, Oil Rubbed Bronze and Powder Coat Matte Black. The rail grab bar is permanently mounted directly to a structural wall stud with screws. The acrylic soap tray sits on the structure of the rail grab bar and is removable for easy cleaning. You state the Invisia Soap Dish exceeds ADA guidelines of 250 lbs., with a maximum weight capacity of 500 lbs. and is primarily intended to provide sitting and standing support to disabled people. The secondary function of a shelf is to replace an accessory that would typically be installed in a bathroom. The tray, which holds soap, is not intended to provide weight support, whereas the rail grab bar diameter is 1.25 inches and the wall clearance of 1.5 inches for the purpose of optimizing grip during assistive transfers of handicapped persons. You state the Invisia Soap Dish is considerably more expensive than a product with only the secondary feature of a shampoo shelf that is sold to the general public. The fourth article under consideration is described as the Invisia Wall Toilet Roll Holder, Item INV-WTRH. This article is a combination grab bar and toilet roll holder that you state is designed to disguise safety and fall prevention in a bathroom accessory. It is comprised of a semi-circular stainless steel rail grab bar that is 1.25 inches in diameter, 7.25 inches wide, 13 inches high, and an attached horizontal rod designed to hold a roll of toilet paper. The wall toilet roll holder is available in the following finishes: Brushed Stainless, Polished Chrome, Oil Rubbed Bronze and Powder Coat Matte Black. The Invisia Wall Toilet Roll Holder is permanently mounted directly to a structural wall stud with screws and has a removable acrylic shelf tray for easy cleaning. You state the Invisia Corner Shelf exceeds ADA guidelines of 250 lbs., with a maximum weight capacity of 500 lbs. and is primarily intended to provide sitting and standing support to disabled people. The secondary function of the toilet roll holder is to replace an accessory that would typically be installed in a bathroom. The axle which holds the toilet roll, is not intended to provide weight support, whereas the rail grab bar diameter is designed at 1.25 inches and the wall clearance of 1.5 inches for the purpose of optimizing grip during assistive transfers of handicapped persons. You state the Invisia Wall Toilet Roll Holder is considerably more expensive than a product with only the secondary feature of a toilet roll holder that is sold to the general public. The fifth article under consideration is described as Invisia Towel Bar Item INV-TB24. This article is a combination grab bar and towel bar that you state is designed to disguise safety and fall prevention in a bathroom accessory. It is comprised of a curved stainless steel rail grab bar that measures 1.25 inches in diameter with a wall clearance of 1.5 inches and an attached towel rung. This item is available with 24 inch or 16 inch rail bars. The Invisia Towel Bar is available in the following finishes: Brushed Stainless, Polished Chrome, Oil Rubbed Bronze and Powder Coat Matte Black. The Invisia Towel Bar is permanently mounted directly to a structural wall stud with screws. You state the Invisia Towel Bar exceeds ADA guidelines of 250 lbs., with a maximum weight capacity of 500 lbs. and is primarily intended to provide sitting and standing support to disabled people. The secondary function of the Towel Bar shelf is to replace an accessory that would typically be installed in a bathroom. The towel rung, which holds the towel, is not intended to provide weight support, whereas the rail grab bar diameter is 1.25 inches and the wall clearance of 1.5 inches for the purpose of optimizing grip during assistive transfers of handicapped persons. The Towel Bar is considerably more expensive than a product with only the secondary feature of a towel bar that is sold to the general public. Invisia items Corner Shelf, Item INV-CS and Shampoo Shelf, Item INV-SHS, are both dual-use articles that consist of a permanent stainless steel wall mounted grab rail and a removable acrylic tray. You cite New York Ruling N213436 and Chapter 94, Note 2(a) as justification for your suggested classification in heading 9403, Harmonized Tariff Schedule of the United States, (HTSUS). We disagree.  Chapter 94, Note 2(a) provides for “Cupboards, bookcases, other shelved furniture (including single shelves presented with supports for fixing them to the wall) and unit furniture.”  Items INV-CS and INV-SHS are not within the construct of Chapter 94, Note 2(a) because the grab rails will be permanently fixed to a wall, not the trays. The term “furniture,” “embraces articles of utility which are designed for the use, convenience, and comfort of the dweller in a house,” as distinguished from articles that are “subsidiary adjuncts and appendages designed for the ornamentation of a dwelling or business place, or which are of comparatively minor importance so far as use, comfort, and convenience are concerned.” The grab rail is the component that permanently mounts to a bathroom wall and fulfills the primary function of the article which you state is “...to provide sitting and standing support to disabled people.”  The tray is not permanently mounted to the wall, but removable. You further state the tray serves a secondary function, is not intended to provide weight support, and is considerably less expensive. Given its function and size, the tray is an appendage serving as a subsidiary adjunct to the grab rail. The grab rails in this ruling are substantially different and classification of Invisia items Corner Shelf, Item INV-CS and Shampoo Shelf, Item INV-SHS in heading 9403, HTSUS is precluded. The applicable subheading for the wall mounted safety grab bars with accessories, Invisia Corner Shelf, Item INV-CS; Invisia Shampoo Shelf, Item INV-SHS; Invisia Soap Dish, Item INV-SD; and Invisia Wall Toilet Roll Holder, Item INV-WTRH will be 8302.41.6080, HTSUS, which provides for Base metal mountings, fittings and similar articles… Other mountings, fittings, and similar articles, and parts thereof: Suitable for buildings: Other: Of iron or steel, of aluminum or of zinc… Other. The rate of duty will be 3.9 percent ad valorem. The applicable subheading for the wall mounted safety Invisia Towel Bar, Item INV-TB24, will be 8302.50.0000, HTSUS, which provides for Base metal mountings, fittings and similar articles…Hat-racks, hat pegs, brackets and similar fixtures, and parts thereof. The rate of duty will be free. Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheadings 8302.41.6080 and 8302.50.0000, 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., 9903.88.03, in addition to subheading 8302.41.6080 or 8302.50.0000, HTSUS, listed above. However, those additional duties do not apply for goods properly entered under 9817.00.96. 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. In your submission you also requested consideration of the grab bars 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 the grab bars with accessories are specially designed or adapted for the “use or benefit of the handicapped” and 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. 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 subject grab bars with accessories 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 five subject grab bars 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, contact National Import Specialist Jennifer Jameson at jennifer.d.jameson@cbp.dhs.gov. Sincerely, Steven A. Mack Director National Commodity Specialist Division