OT:RR:CTF:VS H255447 RMC
John M. Peterson
Neville Peterson LLP
17 State Street – 19th Floor
New York, NY 10004
Re: Subheading 9817.00.96; Handheld Shower Systems
Dear Mr. Peterson:
This is in response to your January 16, 2014 request for reconsideration of New York Ruling (NY) N246906, dated Nov. 18, 2013. In that ruling, the National Commodity Specialist Division found that five handheld shower systems imported by your client, Danze, were ineligible for duty-free treatment under subheading 9817.00.96, Harmonized Tariff Schedule of the United States (“HTSUS”). We affirm N246906 because we agree that the five handheld shower systems at issue are not “specifically designed or adapted for the use or benefit” of handicapped people as required under subheading 9817.00.96, HTSUS.
N2469006 examined the following five handheld shower systems:
Model 465005 – Three Function Person Shower Kit on 24” Slide Bar. The item consists of a plastic handheld shower and a brass or zinc bracket assembly. It also includes a post stud assembly, a 72” metal hose, and a wall mount/attachment that are all made from stainless steel.
Model D461523 – Supply Mount Assembly Hand Shower Kit. This item consists of a plastic handheld shower, a brass supply mount, and a 72” metal hose that is made from stainless steel with a brass end.
Model D461047 – Three Function Personal Shower Kit. This item consists of a plastic handheld shower, a brass bracket mount, and a 72” stainless steel hose with a brass end.
Model D461736 – Versa Slide Bar Assembly. This item consists of a plastic handheld shower, a brass and stainless steel wall mount, and a stainless steel hose.
Model D464401 – Showerstick Showerarm Diverter Kit. This item consists of a plastic showerhead, a flexible hose, a mounting bracket, and a diverter valve. The brass vale has a pressure rating of 80 PSI (551.58 kPa).
You claim that the items comply with the Americans with Disability Act (“ADA”) and therefore qualify for duty-free treatment under subheading 9817.00.96, HTSUS.
The Nairobi Protocol to the Agreement on the Importation of Educational, Scientific and Cultural Materials established duty-free treatment for certain articles for the use or benefit of the handicapped in addition to providing duty-free treatment for articles for the blind. The 97th Congress passed Pub. L. 97-446 to ratify the Nairobi Protocol in the United States. See Pub. L. 97-446, § 161(b), 96 Stat. 2346. The Senate stated in its Report that one of the goals of this law was to benefit the handicapped and show United States support for the rights of the handicapped.
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 state that "articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons" are eligible to receive duty-free treatment.
The issue in this case is whether the handheld shower systems are “specifically designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons” under subheading 9817.00.96, HTSUS.
You argue that “what qualifies an article for classification under subheading 9817.00.96 is the ‘design’ rather than the ‘use’ [of the article].” It is true that the first factor that CBP considers relates to “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.” See Headquarters Ruling Letter (“HQ”) 556449, dated May 5, 1992. But we do not agree with you that “as long as the design features were specifically incorporated in the product to benefit persons with certain types of disabilities, the terms of the tariff would be met.”
Our position is consistent with the legislative intent of 9817.00.96. The Senate Report stated that it did not intend "that an insignificant adaptation would result in duty-free treatment for an entire relatively expensive article. S. Rep. No. 97-564, 97th Cong. 2nd Sess. (1982). Instead, the “modification or adaptation must be significant so as to clearly render the article for use by handicapped persons.” Id. CBP therefore considers each product on a case-by-case basis, considering additional factors such as the physical properties of the article itself, the probability of public use, whether the manufacturer is recognized or proven to be involved in making articles for the handicapped, whether the articles are sold in specialty stores for the handicapped, and whether the articles clearly indicate that they are for the handicapped. See, e.g., HQ 556449.
Here, the physical properties of the handheld shower systems do not distinguish them in any way from handheld shower systems useful to non-handicapped people. This is true even though the items appear to comply with ADA requirements. Observing the physical properties of these items—a hose measuring at least 59”, usability in a fixed or handheld position, and an on-off switch—would not cause a member of the public to conclude that the items were designed for the handicapped.
Furthermore, as you note in your request, “probability of general public use” is an important consideration in CBP’s case-by-case determination of whether a good is “specifically designed or adapted for the use or benefit” of handicapped people. You state that this is an “administrative formulation” that has “not been acknowledged or recognized by the courts.” You are correct, but only because the courts have not interpreted the meaning of “specifically designed or adapted for the use or benefit of handicapped people” under subheading 9817.00.60, HTSUS at all. Accordingly, we continue to consider the “probability of general public use” as we have in numerous previous decisions. Although these decisions are not entitled to Chevron deference by the courts, they are entitled to Skidmore deference consistent with their power to persuade based on the “thoroughness evident in the classification ruling, the validity of [their] reasoning, [their] consistency with earlier and later pronouncements, the formality attendant the particular ruling, and all those factors that give [them] the power to persuade.” Mead Corp. v. United States, 283 F.3d 1342, 1346 (Fed. Cir. 2002) (citing United States v. Mead Corp., 533 U.S. 218, 219-20 (2001); Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).)
You also point out that the Canadian International Trade Tribunal does not consider the extent of general public use when it decides whether an item was “specifically designed to assist persons with disabilities” and has held that similar sinks were eligible for duty-free treatment. See Wolseley Canada, Inc. v. Canada Border Services Agency, AP-2012-006. Although we are not required to follow Canadian precedent, we considered the arguments presented in that case. We agree with the Canada Border Service Agency’s position that an item’s “universal design” and use by a broad market demographic means that it is not “specifically designed” for the handicapped. This is consistent with previous CBP decisions that have considered the “probability of general public use” for eligibility under subheading 9817.00.96, HTSUS.
Although we agree that use by the general public does not automatically disqualify a good under subheading 9817.00.96, here the extent of probable public use is so great that the goods cannot qualify as “designed or adapted” for the handicapped. The “probability of general public use” factor also includes an evaluation of convenience. For example, in HQ 556449, dated Oct. 28, 1993, which you cite, we found that a fork with a clamp had a low probability of public use where the use of the fork required putting food on the end of the fork and then clamping the fork to the side of the plate for one-handed cutting. We concluded that this would be so inconvenient for non-handicapped people that its probability of general public use was minimal. Here, by contrast, it is likely that the general public would find a handheld shower equally or more convenient than a traditional showerhead. This finding is consistent with two previous rulings holding that similar handheld shower systems “have too high a ‘probability of general public use’ to meet the requirements” under subheading 9817.00.96. See H950772, dated Mar. 4, 1992; H966791, dated Jan. 16, 2004; see also NY R01814, dated May 17, 2005; N042600, dated Nov. 10, 2008.
The general public buys and uses handheld shower systems for a multitude of reasons that have nothing to do with handicaps or disabilities. This distinguishes handheld shower systems from the items considered in HQ 557458, dated Oct. 28, 1993—which you cite, namely, shower/bath seats, wall-mount grab bars, and bath safety rails—all of which the general public are unlikely to buy or use. We find that NY N264906, dated Nov. 18, 2013 is correct in finding that many people buy handheld shower systems because they make it easier to cleanse themselves, to wash a pet, or to give a child a bath—especially where, as here, the shower systems have an on-off switch—or simply because they like controlling the showerhead with their hands. Furthermore, after examining the submitted photographs and descriptions, we also agree with NY N264906, dated Nov. 18, 2013 that these types of shower systems are sold in standard hardware stores frequented by the general public.
On balance, we therefore find that the Danze showerheads were not “specifically designed or adapted for the use or benefit” of handicapped people and do not qualify for duty-free treatment. N246906 is affirmed.
Sincerely,
Monika R. Brenner, Chief
Valuation and Special Programs Branch