OT:RR:CTF:VS H246652 RMC
John M. Peterson
Neville Peterson LLP
17 State Street – 19th Floor
New York, NY 10004
Re: Subheading 9817.00.96; Ceramic Toilet Bowls from China
Dear Mr. Peterson:
This is in response to your August 8, 2013, request for a ruling on the applicability of subheading 9817.00.96 of the Harmonized Tariff Schedule of the United States (“HTSUS”) to toilets designed, manufactured, and sold by your client, American Standard Brands, Inc. A photograph and schematic was submitted with your request.
FACTS:
The product at issue is The American Standard Evolution 2 Right Height Elongated Toilet (“Evolution 2 Right Height Toilet”). The Evolution 2 Right Height Toilet is a vitreous china toilet bowl that is offered in various configurations with specially designed tanks or accessories. While a typical household and commercial toilet measures about 14 to 15 inches from the floor to the top of the seat, the Evolution2 Right Height Toilet is significantly taller, measuring 16.5 inches from the floor to the bowl rim.
It is claimed that the Evolution 2 Right Height Toilet’s higher seating position makes a significant difference for people with handicaps and decreased mobility. For wheelchair-bound people, the taller height makes it easier to transfer from the wheelchair to the toilet and back. For those whose range of motion is limited by arthritis or other medical conditions, the taller height reduces the negative angle on the knee while seated and makes it easier to sit down on and get up from the toilet.
American Standard markets the Right Height Toilet as compliant with the Americans with Disabilities Act (“ADA”). The toilet is designed for use with a toilet seat measuring between 5/8 inch and 1.25 inches when installed. With a toilet seat installed, it is stated that the Evolution 2 Right Height Toilet satisfies ADA height requirements.
ISSUE:
Whether the Evolution 2 Right Height Toilet is eligible for duty-free treatment under subheading 9817.00.96 of the HTSUS as an item “specifically designed or adapted for the use or benefit of the blind of other physically or mentally handicapped persons.”
LAW AND ANALYSIS:
Section 9817.00.96 of the HTSUS came into effect in the United States through a series of international agreements and acts of Congress. Its basis is in the Agreement on the Importation of Educational, Scientific and Cultural Materials, opened for signature Nov. 22, 1950, 17 U.S.T. 1835, 131 U.N.T.S. 25, or “Florence Agreement,” drafted by the United Nations Educational, Scientific, and Cultural Materials (“UNESCO”) in July of 1950. 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. See Protocol to the Agreement on the Importation of Educational, Scientific, or Cultural Materials, opened for signature 1 Mar. 1977, 1259 U.N.T.S. 3.
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 was concerned, however, that people would misuse this tariff provision to avoid paying duties on expensive products. As a result, it stated 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. Section 1121 of the Omnibus Trade and Competitiveness Act of 1988 (Pub. L. No. 100-418, 102 Stat. 1107) and Presidential Proclamation 5978 implemented the Nairobi Protocol by inserting permanent provisions—specifically, 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.
Notes in subchapter XVII of Chapter 98 of the HTSUS define the terms “blind or other physically or mentally handicapped persons” and limit the classification of certain products under subheadings 9817.00.92, 9817.00.94, and 9817.00.96. U.S. Note 4(a), subchapter XVII, Chapter 98, HTSUS, defines the term “blind or other physically or mentally handicapped persons” as “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 excludes four categories of goods from subheadings 9817.00.92, 9817.00.94, and 9817.00.96: (1) articles for acute or transient disability; (2) spectacles, dentures, and cosmetic articles for individuals not substantially disabled; (3) therapeutic and diagnostic articles; and (4) medicine or drugs. It is undisputed here that wheelchair-bound people and those with severe, chronic mobility issues qualify as “handicapped people” under U.S. Note 4(a) and that the specific exclusions contained in U.S. Note 4(b) do not apply in this case. The issue here regarding the Evolution 2 Right Height Toilet is whether it is “specifically designed or adapted for the use or benefit” of handicapped people under HTSUS 9817.00.96.
You state that ADA regulations require that compliant toilets measure between 17 inches and 19 inches from the floor to the top of the toilet seat. See 28 C.F.R. § 36, Appendix A, 4.16.3. Although your letter arguing that the Evolution 2 Right Height Toilet was “specifically designed or adapted for the use or benefit” of handicapped people places great weight on the product’s ADA compliance, that fact alone is not dispositive. CBP decides whether a product is “specially designed or adapted for the use or benefit” of the handicapped on a case-by-case basis, balancing five factors set forth in Headquarter Ruling Letter (“HQ”) HQ556449, dated May 5, 1992. Those factors are set forth below and applied to the facts of this case.
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;
A product’s compliance with the ADA has been an important consideration in CBP’s determination under this factor. In H230457, dated July 19, 2013, for example, CBP found that certain bathroom fixtures satisfied this factor because they were “easily distinguishable as designed for the handicapped since they meet or exceed the standards under the ADA and are prominently marked as ADA-compliant.” It is claimed that the Evolution 2 Right Height Toilet complies with the ADA and that it is marked and advertised as ADA compliant. While this may be true, its height of 16.5 inches may also be attractive for use by a taller person without any handicap. Therefore, we do not find that its physical properties are readily distinguishable from articles useful to non-handicapped individuals.
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;
Although CBP has previously found that it was “unlikely that toilets measuring 17 inches from the floor to the top of the bowl rim would be acquired other than for the benefit or the use of a handicapped individual who is likely to benefit when transferring from the wheelchair to the toilet,” the Evolution 2 Right Height Toilet is 0.5 inches shorter. See H055815, dated May 26, 2010. It therefore complies with the ADA height requirement only after accounting for the addition of a toilet seat. Therefore, we do not find that the Evolution 2 Right Height Toilet has characteristics that create a substantial probability of use by the chronically handicapped.
Whether articles are imported by manufacturers or distributors recognized or proven to be involved in this class or kind of articles for the handicapped;
CBP has previously found that toilets imported by your client, American Standard, qualify as goods “specifically designed or adapted for the use or benefit” of handicapped under HTSUS 9817.00.96. See, e.g., N2343356, dated July 18, 2013. This shows the Evolution 2 Right Height Standard toilet was imported by a manufacturer “recognized or proven” to be involved in this class or kind of articles for the handicapped and thus satisfies this factor. However, as noted above, each product is considered on a case-by-case basis.
Whether the articles are sold in specialty stores which serve handicapped individuals; and
This factor does not require that the goods be sold exclusively through specialty stores. Instead, it merely requires that some of the goods be sold through specialty retail stores for the handicapped and that those sold to the general public be easily distinguishable as designed for the handicapped. See H230457, dated July 19, 2013. CBP has found that goods are “easily distinguishable” for purposes of this factor when they meet ADA requires and are prominently marked as ADA compliant. Id. Here, although the goods are ADA compliant and are prominently marked as such, you did not provide evidence that the Evolution 2 Right Height Toilet is sold through specialty stores. An internet search likewise provided no evidence that some of the units were sold through specialty stores. This factor therefore cannot be satisfied based on the evidence you provided.
Whether the condition of the articles at the time of importation indicates that these articles are for the handicapped.
The product specification sheet you provided shows that the Evolution 2 Right Height Toilet is marked as ADA compliant. The sheet itself prominently displays the International Symbol of Access twice and states that the product meets ADA requirements. However, as noted above, the Evolution 2 Right Height Toilet complies with the ADA only when accounting for the addition of a toilet seat. This factor therefore is not satisfied.
As previously noted, CBP weighs the five factors listed above on a case-by-case basis. On balance, we find that the Evolution 2 Right Height Toilet does not qualify for duty-free treatment under 9817.00.96 of the HTSUS. This finding is consistent with Headquarters Ruling H055815, dated May 26, 2010, where we found that a similar toilet measuring 16.5 inches from the floor to the bowl rim did not qualify under 9817.00.96 of the HTSUS.
HOLDING:
We find that the Evolution 2 Right Height vitreous china toilet is not eligible for duty-free treatment under 9817.00.96 of the HTSUS.
Sincerely,
Monika R. Brenner, Chief
Valuation and Special Programs Branch