OT:RR:CTF:VS H230457 FP
David P. Sanders
1666 K Street, NW, Ste 1200
Washington, DC 20006
Re: Subheading 9817.00.96; Grab bars, bath grips and mounting system
Dear Mr. Sanders:
This is in response to your request on behalf of Moen Incorporated (“Moen”), requesting a ruling on the applicability of subheading 9817.00.96, of the Harmonized Tariff Schedule of the United States (“HTSUS”), to various Grab bars, bath grips and their mounting system, designed by, manufactured for and sold by your client. Moen seeks a ruling for five representative categories of imported grab bars and bath accessories, plus a category for its proprietary mounting system. Descriptions of each product category and a representative sample were included with your correspondence.
At your request, a conference call was held on April 24, 2013, where you were afforded the opportunity to provide additional supporting arguments to your client’s request.
Moen indicates that the products covered by this request are designed by, manufactured for, and sold by its Creative Specialties Division, as part of the Moen Care line of safety products. This division works with occupational and physical therapists, industrial engineers, customer focus groups, and installation professionals to design bathroom fixtures that generally meet Americans with Disabilities Act (“ADA”) standards.
The following is a brief description of each of the representative categories of imported grab bars and bath grips, plus the mounting system, which are subject of this request:
Group 1 Basic Grab Bars
This product-line category of basic grab bars are made from stainless steel, are 1.25”or 1.5” in diameter, have weight-load bearing capacities of 250 to 500 pounds, and come in a wide array of lengths ranging from 12”to 48” and six finishes: polished stainless steel, brushed stainless steel, peened stainless steel, white, polished brass, and chrome. All bars in this product category are claimed to meet or exceed ADA standards and can be installed using screws if correct stud anchoring exists at the installation location or using Moen’s SecureMount system, its proprietary mounting system described further below. The representative sample grab bar has a stainless steel finish, is 36” in length, 1.25” in diameter and has an advertised weight load bearing capacity of 500 pounds. Its packaging (and product specification sheet) clearly informs consumers that the bar meets ADA standards and displays the graphic symbol of a handicapped person.
Group 2: Designer Grab Bars
This product category of grab bars with grip pads are all claimed to meet or exceed ADA standards, are made primarily of stainless steel or plastic, are 1.25”or 1.5” in diameter, have weight-load bearing capacities of 250 to 500 pounds, and come in lengths ranging from 12”to 48” and seven finishes: polished stainless steel, brushed stainless steel, white, polished brass, old world bronze, oil rubbed bronze and chrome. Like the basic grab bars in Group 1, this product category of grab bars can also be installed using screws if correct stud anchoring exists at the installation location or using Moen’s SecureMount system.
Unlike the basic grab bars in Group 1, Moen’s designer grab bars include other elements of design than finish options, such as decorative flanges and angles, or extra grippable features, such as curl or grip pads, which are claimed to be designed for the handicapped.
The representative sample grab bar has an old world bronze finish, is 24” in length, 1.25” in diameter and has an advertised weight load bearing capacity of 500 pounds. Its packaging (and product specification sheet) clearly informs consumers that the bar meets ADA standards and displays the graphic symbol of a handicapped person.
Group 3: Flip-Up Grab Bars
This product category of grab bars are designed to easily flip down when a grab bar is necessary and flip up and out of the way when assistance is not needed. The sample flip-up grab bar has a stainless steel finish, is 30” in length, 1.25” in diameter and has an advertised weight load bearing capacity of 300 pounds. Its packaging (and product specification sheet) clearly informs consumers that the bar meets ADA standards and displays the graphic symbol of a handicapped person. All of Moen’s flip-up grab bars have the same characteristics, except that they are also available in white finish. Unlike the previous two categories, flip up bars can only be installed using screws if correct stud anchoring exists at the installation location. Flip up bars are generally used in public restrooms, hospitals, and commercial handicapped accessible spaces.
Group 4: Grab Bars with Accessories
This product category of grab bars with accessories are claimed to have the same functionality as the grab bars in groups 1 and 2 described above, but incorporate additional useful features such as toilet paper holders, towel bars, or shower shelves. Moen claims that the primary function and purpose of this product category is to assist with lifting oneself and to provide balance and stability for handicapped people, even though they have secondary features that make them seem less medical or institutional (dual use). Moen believes it is unlikely that a consumer would buy one of these grab bars solely for the secondary features, because the bars are considerably more expensive than purchasing articles with the secondary feature alone.
However, Moen’s grab bars with accessories do not meet all ADA standards, since they are only 1” in diameter and some do not meet ADA’s weight-load bearing capacity minimums. These bars are made of stainless steel and are available in brushed nickel, old world bronze, and chrome finishes. This product category of grab bars can be installed using screws if correct stud anchoring exists at the installation location or using Moen’s SecureMount system.
The representative sample for this category, Moen’s Brushed Nickel Grab Bar with Integrated Paper Holder, has a stainless brushed nickel finish, has a 1” diameter, and an advertised weight load bearing of 250 pounds.
Group 5: Bath Grips
This product category consists of bath grips, which are smaller, less expensive and easier to install than grab bars. Moen claims that its customers purchase bath grips where additional stability and balance control are needed. The bath grips are made primarily of stainless steel, plastic and zinc, are 0.875” in diameter, range in length from 9”to 12”, and are available in brushed nickel, glacier (white), old world bronze, and chrome finishes. Bath grips can only be installed using screws if correct stud anchoring exists at the installation location.
While there are no ADA standards written specifically for bath grips, Moen’s grab bars with accessories do not meet all ADA standards for grab bars, and cannot be claimed to be ADA-compliant.
The representative sample for this category, Moen’s Glacier Bath Grip, has a white finish, has a 0.875” diameter, is 9” in length, and has an advertised weight load bearing capacity of 250 pounds.
Group 6: SecureMount System for Grab Bars
This product category consists of an anchor and installation hardware system specifically designed to mount Moen’s grab bars on drywall, drywall with tile, and drywall with marble. According to the information provided, by drilling a hole into a wall, sliding a SecureMount anchor into the hole, and then attaching a grab bar onto the anchor, a consumer can mount a grab bar without having to locate and use a stud in the wall. Moen claims that in applications that preclude stud mounting, the SecureMount system guarantees and is marketed for a weight-load bearing capacity of at least 500 pounds.
The SecureMount systems are made of plastic and either stainless steel or aluminum, and are sold individually, in pairs, and in bulk, but are only intended to be used in conjunction with Moen’s grab bars.
Two representative samples of SecureMount Anchors were provided for this category. The first is comprised of a SecureMount anchor and installation hardware that includes screws, washers, and a mounting plate with a water-resistant gasket. The mounting plate has a chrome finish that coordinates with Moen’s chrome and stainless steel grab bars described earlier. The second sample is made up of two SecureMount anchors and installation hardware for each. The packaging of both samples inform consumers that SecureMounts meet ADA standards using the terminology “ADA-Compliant” and include the graphic of a handicapped person.
Whether the various articles described are “specially designed or adapted” for the handicapped within the meaning of the Nairobi Protocol, and, therefore, eligible for duty-free treatment under subheading 9817.00.96, HTSUS.
LAW AND ANALYSIS:
The Agreement on the Importation of Educational, Scientific and Cultural Materials, known as the Florence Agreement, is an international agreement drafted by the United Nations Educational, Scientific, and Cultural Organization (UNESCO), adopted by it in Florence, Italy, in July 1950 (17 UST 1835; TIAS 6129). It provides for duty free treatment and the reduction of trade obstacles for imports of educational, scientific, and cultural materials in the interest of facilitating the international free flow of ideas and information. In 1976, UNESCO adopted the Nairobi Protocol to the Florence Agreement, which expanded the scope of products to include materials specially designed for handicapped persons.
Congress ratified the Nairobi Protocol and enacted it into U.S. law in 1982, Pub. L. 97-446. The Senate stated in its Report that one of the goals of this law was to benefit the handicapped and show U.S. support for the rights of the handicapped. The Senate, however, did state that it did not intend "that an insignificant adaptation would result in duty free treatment for an entire relatively expensive article... the modification or adaptation must be significant so as to clearly render the article for use by handicapped persons." S. Rep. (Finance Committee) No. 97-564, 97th Cong. 2nd Sess., Sept. 21, 1989. The Senate was concerned that persons would misuse this tariff provision to avoid paying duties on expensive products.
Section 1121 of the Omnibus Trade and Competitiveness Act of 1988 (Pub. L. No. 100-418, 102 Stat. 1107) and Presidential Proclamation 5978 provided for the implementation of the Nairobi Protocol by inserting permanent provisions, subheadings 9817.00.92, 9817.00.94, and 9817.00.96 into the HTSUS. These tariff provisions specifically provide that "[a]rticles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons" 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 that "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 regarding the bathroom fixtures in question is whether they are "specifically designed or adapted" for the use or benefit of the handicapped within the meaning of the Nairobi Protocol. The meaning of the phrase "specially designed or adapted" has been decided on a case-by-case basis. In Headquarters Ruling Letter ("HQ") 556449, dated May 5, 1992, CBP set forth 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 and the corresponding use specific to this unique design, from articles useful to non-handicapped individuals;
(2) whether any characteristics are present in an article that create a substantial probability of use by the chronically handicapped, whether the article is easily distinguishable from articles useful to the general public, and whether use of the article by the general public is so improbable that such use 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.
Each of these factors is to be weighed against each other to determine whether an article is specially designed or adapted for the handicapped. See also T.D. 92-77 (26 Cust. Bull. 1, August 26, 1992).
The articles in question consist of six different product categories of grab bars, bathroom fixtures and parts, as described above.
CBP has previously considered whether articles similar to the ones at issue are eligible for treatment under 9817.00.96, HTSUS. In HRL 557458, dated October 28, 1993, which considered wall-mounted seats, grab bars, and bathtub safety rails, CBP found them to be “specially designed or adapted” because the likelihood of use by the general public was remote. HRL 557734, dated April 18, 1994, found that an aluminum folding walker would be predominantly used by the chronically handicapped and thus “specially designed” to enable the handicapped to adapt to their disability.
In analyzing some of the factors enumerated in HRL 556449, we note that Moen’s products at issue are sold by retailers that market products to the general public. However, some of the articles at issue, specifically those represented in Groups 1 through 3, are also sold through specialty retailers for the handicapped and are easily distinguishable as designed for the handicapped since they meet or exceed the standards under the ADA and are prominently marked as ADA-compliant.
We find it unlikely that those grab bars specifically compliant with ADA standards, would be acquired other than for the benefit or use of a handicapped individual who is likely to benefit from their assistance where installed.
In analyzing the probability of general public use to the articles under consideration, we note that the likelihood of the general public using the various grab bars described in Groups 1 through 3 is remote given that they are specifically designed to conform to government-defined standards for the handicapped contained in the ADA.
Unlike the articles in Groups 1 through 3, the dual-use grab bars with accessories and bath grips described in in Groups 4 and 5, respectively, do not meet ADA standards. As discussed earlier, in the legislative history of subheading 9817.00.96, HTSUS, Congress expressed that the design, modification or adaption of an article must be significant, so as to clearly render the article for use by handicapped persons. The grab bars with accessories and bath grips are not marketed and sold just to the handicapped but are available to the general public, and the marketing materials provided show children and non-handicapped persons using the articles.
As such, there exists a probability that the articles will also be used by individuals with acute disabilities and non-handicapped individuals that may need transient support. Because these articles are equally suitable for use by a large population, including those who suffer from acute or transient disability and the non-handicapped, the use of the articles in this manner is not so improbable as to constitute a fugitive use; therefore, we are unable to conclude that the grab bars with accessories and the bath grips will be used predominantly by individuals suffering from a permanent or chronic physical or mental impairment, as required by U.S. Note 4(a), subchapter XVII, Chapter 98, HTSUS.
You cite New York Ruling Letter N213436, dated May 1, 2012, to support your claim that dual use, or “2-in-1”, grab bars should be classified under heading 9817, because CBP focused on the weight-bearing features of the bars, disregarding the combination with another functionality. The facts in N213436 are distinguishable from the facts before us, because the dual-use articles subject of that ruling were represented by the ruling requestor to meet or exceeded ADA standards, which is not the case of Moen’s Group 4 and 5 articles.
Thus, while articles in Group 4 and 5 may be of benefit to the handicapped, we do not believe they are the type of equipment which can be said to be specially designed or adapted for handicapped people.
Regarding the SecureMount anchor and installation system, the question is whether the system constitutes a part of an eligible article, when imported separately. In Starkey Laboratories, Inc. v. United States, 22 CIT 360 (April 10, 1998), the court found certain parts of hearing aids to be specially designed or adapted for the use of deaf persons. The court held that the parts were specially designed or adapted in that the parts had to adhere to certain design limitations., i.e., the merchandise had to be resistant to humidity and moisture; they had to be manufactured to fine tolerances; and for those components that used power, their power consumption had to be designed to be low to prolong battery life in hearing aids.
In HRL H024976, dated March 23, 2009, CBP held that certain imported parts of a wheelchair securement system were eligible for preferential tariff treatment under subheading 9817.00.96, HTSUS. CBP held that the wheelchair securement systems at issue were specially designed for the use or benefit of handicapped persons and then considered whether particular parts were specially designed or adapted for use in the securement systems. For instance, parts of general use such as nuts, bolts, and screws were not held to be eligible for preferential treatment under subheading 9817.00.96, HTSUS.
We note that the SecureMount system is used to install many of Moen’s bathroom accessories, but not exclusively those that we find in this case to be specially designed for the use or benefit of handicapped persons. Further, we find that the SecureMount anchor and installation system is similar to the parts of general use described in HRL H024976, and therefore ineligible for preferential treatment under subheading 9817.00.96, HTSUS.
Based on the application of the above factors, we find as follows:
The grab bars in Groups 1 through 3, which are specifically compliant with ADA standards, are "specially designed and adapted" for the use or benefit of the handicapped people and are entitled to duty-free treatment under 9817.00.96, HTSUS.
However, articles of the other representative groups, namely Groups 4 through 6, are not articles specially designed and adapted for the handicapped, and therefore, not eligible for preferential treatment under subheading 9817.00.96, HTSUS.
Previously, importers of eligible articles for the handicapped were required to complete the Department of Commerce Form ITA-362P in order to receive duty-free treatment. However, as of May 31, 2010, Form ITA-362P has been eliminated because the majority of the information obtained through this form is currently available to the Deparment of Commerce, International Trade Administration (ITA) through CBP’s Automated Commercial System (ACS). ITA reserves its right to request information from importers in addition to that available through an ACS data query, in the case that it must perform an adverse impact assessment pursuant to section § 1121(g) of the Omnibus Trade and Competitiveness Act of 1988.
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 official handling the transaction.
Monika Brenner, Chief
Valuation and Special Programs Branch