The tariff classification and eligibility under the Nairobi Protocol of safety grab bars from China

N307728 December 13, 2019 CLA-2-83:OT:RR:NC:N1:121 CATEGORY: Classification TARIFF NO.: 8302.41.6080, 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 safety grab bars from China Dear Ms. Lauziere: In your letter dated November 18, 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. 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 item, product identification INV-ACB, described as Invisia Accent Bar, is a decorative curved grab bar, designed for use in a bathroom. The grab bar is made of stainless steel construction and is available in several finishes: Brushed Stainless, Polished Chrome, Oil Rubbed Bronze, or Powder Coat Matte Black. The Invisia Accent Bar permanently mounts to a bathroom wall stud with screws and can be installed vertically, horizontally, or at an angled position. Its primary function is to provide sitting and standing support to disabled persons. The bar is 1.25 inches in diameter, 24 inches long, has a wall clearance of 1.5 inches and can support a maximum weight capacity of 500 pounds. The second item, product identification INV-ACR, described as Invisia Accent Ring, is a circular grab bar designed for use in a bathroom shower. The circular grab bar is made of stainless steel construction and is available in several finishes: Brushed Stainless, Polished Chrome, Oil Rubbed Bronze, or Powder Coat Matte Black. The Invisia Accent Ring is designed to be mounted around a shower valve and is permanently mounted directly to a structural wall stud with screws. Its primary function is to provide sitting and standing support to disabled persons while adjusting shower water controls. The circular grab bar is 1.25 inches in diameter, 12.1 inches wide, 10.3 inches high, has a wall clearance of 1.5 inches and can support a maximum weight capacity of 500 pounds. The third item, product identification INV-LB, described as Invisia Linear Bar, is a grab bar designed for use in a bathroom. The grab bar is made of stainless steel construction and is available in several finishes: Brushed Stainless, Polished Chrome, Oil Rubbed Bronze, or Powder Coat Matte Black. The Invisia Linear Bar permanently mounts to a bathroom wall stud with screws and can be installed vertically, horizontally, or at an angled position. Its primary function is to provide sitting and standing support to disabled persons. The bar is 1.25 inches in diameter, has a wall clearance of 1.5 inches and is available in lengths of 12, 18, or 24 inches. It can support a maximum weight capacity of 500 pounds. The fourth item, described as Easy Mount Grab Bar, is a safety grab bar designed to be used in any room in a house or building. It is made of stainless steel and is available in several finishes: Knurled, Polished, or Powder Coat White. The Easy Mount Grab Bar mounts directly to a structural wall stud with screws and features a 9-hole flange and cover which provides the option to add additional mounting screws. Its primary function is to provide sitting and standing support to disabled persons. The bar is 1.25 inches in diameter, has a wall clearance of 1.5 inches and is available in 12, 18, 24, 32, 36, or 42-inch lengths. The 32, 36, and 42-inch length bars have a maximum weight capacity of 400 pounds while the 12, 18, and 24-inch length bars have a maximum weight capacity of 500 pounds. The fifth item, described as L-Shaped Grab Bar, is safety grab bar designed for use in a bathroom. It is made of stainless steel construction with a knurled finish. The L-Shaped Grab Bar permanently mounts directly to a structural wall stud with screws. The bar features three 9-hole flanges which provide the option to add additional mounting screws to provide a more secure installation. The L-Shaped Grab Bar is 1.25 inches in diameter and has a wall clearance of 1.5 inches. Each arm of the L-shape is 30 inches long. The maximum weight capacity the L-Shaped Grab Bar can support is 500 pounds. The applicable subheading for the INV-ACB Invisia Accent Bar, the INV-ACR Invisia Accent Ring, the INV-LB Invisia Linear Bar, the Easy Mount Grab Bar, and the L-Shaped Grab Bar will be 8302.41.6080, Harmonized Tariff Schedule of the United States (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. Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 8302.41.6080, 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, 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 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 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