The tariff classification of a bogie wheel kit from China

N310383 March 26, 2020 CLA-2-87:OT:RR:NC:N2:206 CATEGORY: Classification TARIFF NO.: 8708.99.8180; 9903.88.03 Jeffrey E. Stapleton M.E. Dey & Company, Inc. 700 W. Virginia Street Milwaukee, WI 53204 RE: The tariff classification of a bogie wheel kit from China Dear Mr. Stapleton: In your letter dated March 4, 2020, you requested a tariff classification ruling on behalf of your client, Discount Ramps.com LLC of Germantown, Wisconsin. The item under consideration has been identified as a Bogie Wheel Kit used with a Tilt-A-Rack. You state in your request that the kit is used as a temporary accessory to position a Tilt-A-Rack mobility scooter to a motor vehicle. The bogie wheel consists of a plastic wheel mounted on a perforated tube made of extruded aluminum that slides into a second perforated aluminum tube. The tube sections are connected with a cotter pin that slides horizontally into one of the perforated holes. The height of the assembly can be adjusted by choosing different holes in the tubes. This allows the user to adapt the bogie wheel so that it can align the Tilt-A Rack carrier to different motor vehicle hitch heights. Once the Tilt-A-Rack carrier has been positioned on the vehicle, the bogie wheel is removed until it is needed to detach the Tilt-A-Rack mobility scooter carrier. The applicable subheading for the Bogie Wheel Kit used with a Tilt-A Rack will be 8708.99.8180, Harmonized Tariff Schedule of the United States (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. You also request consideration of the Bogie Wheel Kit 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 provided, the kit does not possess any distinguishable features to be recognizable as “specially designed or adapted” for the use or benefit of handicapped persons. As a result, the Bogie Wheel Kit will not be eligible for the duty free treatment under subheading 9817.00.96, HTSUS. Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 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., 9903.88.03, 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. 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