OT:RR:CTF:VS H330748 UBB
Blanca Esteban
Improving Mobility Development, SL
Carrer de la Coma 19, Pol. Ind. Pla de Rascanya,
Valencia 46160
Spain
RE: Affirmation of N330440, N330461 and N330404; Applicability of Subheading 9817.00.96, HTSUS, to various grab bars
Dear Ms. Esteban,
This is in response to three requests for reconsideration that you made on behalf of Improving Mobility Development, S.L. (“IMD”). The requests were dated February 1, 2023 (requesting reconsideration of New York Ruling Letter (“NY”) N330440, dated February 1, 2023) (“Feb. 1 request”), February 6, 2023 (requesting reconsideration of NY N330461, dated February 3, 2023) (“Feb. 6 request”), and February 8, 2023 (requesting reconsideration of NY N330404, dated February 3, 2023) (“Feb. 8 request”). We have reviewed your requests and we find that NY N330440, NY N330461, and NY N330404 are correct for the reasons set forth herein. Because your requests for reconsideration raise substantially similar issues and/or pertain to substantially similar merchandise we have combined our response below.
In your Feb. 1 and Feb. 8 requests, you argue that your products were erroneously denied treatment under subheading 9817.00.96, Harmonized Tariff Schedule of the United States (“HTSUS”), covering articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons.
In your Feb. 1 request, you requested reconsideration of NY N330440, also dated February 1, 2023. NY N330440 addressed the eligibility of certain bath access bars (PEPE item P30008, and KMINA items K30023 (gray padding) and K30024 (blue padding)) for duty-free treatment under subheading 9817.00.96, HTSUS. NY N330440 describes the bath access bars as follows:
These products are made of a white lacquered stainless steel tube frame that mounts to the side of a bathtub with a padded fixing system that adjusts to fit a bathtub wall. The PEPE bath access bar item P30008 measures .98 inches in diameter, 19.5 inches tall, and 6 inches wide. It adjusts to fit a bathtub wall from 2.7 - 6.7 inches wide, and is designed to support individuals up to 220 pounds. The KMINA bath access bars, items K30023 (gray padding) and K30024 (blue padding) measure .91 inches in diameter, 19 inches tall and 7.5 inches wide. They adjust to fit a bathtub wall from 3 - 6.3 inches wide and are designed to support individuals up to 250 pounds. The KMINA models have a non-slip EVA rubber padding at the grip point of the bar. You state that these bath access bars can be used in bathtubs around the house and are medical devices designed for people who have difficulty getting in and out of the bathtub, or who are at risk of falling. They will be sold online through Amazon, and to home healthcare dealers/providers, nursing homes, rehab and therapy clinics, and through the importer's website.
NY N330440 determined that the bath access bars did not qualify for duty-free treatment under 9817.00.96, HTSUS, because they were not compliant with the Americans with Disabilities Act (“ADA”) Accessibility Guidelines. In evaluating ADA compliance, CBP noted that the ADA Guidelines include specifications such as a circular cross section with an outside diameter of 1 1/4 inches (32 mm) minimum and 2 inches (51 mm) maximum, that support a vertical or horizontal force of a minimum of 250 pounds, and that provide space between the wall and the grab bar of 1 ½ inches (38mm). The PEPE bath access item P30008 did not meet the minimum load bearing or circular cross section requirements for bars, and the KMINA bath access bars filed to meet the circular cross section requirements.
In your Feb. 1 request, you provide updated measurements for the bath access bars. You note that the diameter of the PEPE bar (item P30008) is 2.6cm = 1.0236 inches, and that the diameter of the KMINA bars (items K30023 (gray padding) and K30024 (blue padding)) is 2.6cm = 1.0236 inches. You state that these new measurements meet the ADA standards (by your argument, because they are more than 1 inch in diameter).
In your Feb. 8 request, you requested reconsideration of NY N330404, dated February 3, 2023. NY N330404 addressed the eligibility of certain toilet grab rails, PEPE item P30011/P30021 (“Pepe Toilet Grab Rail”), and PEPE item P30027/P30028 (“Pepe Padded Toilet Grab Rail”) for duty-free treatment under subheading 9817.00.96, HTSUS. N330404 describes the bathroom grab rails as follows:
The first style is referred to as the “Pepe Toilet Grab Rail”. It is available as a single rail, item P30011, or as two rails, item P30021. The Pepe Toilet Grab Rail is designed to be mounted to the wall behind a toilet and extends from the wall on either side of a toilet. It consists of a steel mounting plate and a U-shaped handle made of steel tubing. The mounting plate measures 5.1 inches by 11.8 inches and has six screw holes. The U-shaped handle measures 30 inches by 7 inches, has a diameter of 1.18 inches and is designed to support 220 pounds. The handle is attached to the mounting plate with a hinge and when not in use it can be folded upwards 90 degrees to be parallel with the wall. The grab bar is coated with a white lacquered finish. Included with the grab bar is installation hardware consisting of 6 screws and 6 plugs.
The second style is referred to as the “Pepe Padded Toilet Grab Rail”. It is available as a single rail, item P30027, or as two rails, item P30028. The Pepe Padded Toilet Grab Rail is designed to be mounted to the wall behind a toilet and extending from the wall on the left and right side of a toilet. It consists of an aluminum mounting plate and a U-shaped handle made of aluminum tubing. The mounting plate measures 2 inches by 7.5 inches and has four screw holes. The U-shaped handle measures 22.5 inches by 5.5 inches, has a diameter of 1.5 inches, is covered with foam padding, and is designed to support 220 pounds. The handle is attached to the mounting plate with a hinge and when not in use it can be folded upwards 90 degrees to be parallel with the wall. The grab bar is coated with a white lacquered finish. Installation hardware is included.
NY N330404 determined that the toilet grab rails did not qualify for duty-free treatment under subheading 9817.00.96, HTSUS, as they were not compliant with ADA guidelines. In evaluating compliance with ADA guidelines (the same guidelines as those described above), CBP noted that the Pepe Toilet Grab Rail and Pepe Padded Toilet Grab Rail were designed to only support 220 pounds, which is less than the ADA minimum requirement of 250 pounds. Additionally, the Pepe Toilet Grab Rail, Items P30011 and P30021 have a diameter of 1.18 inches and did not meet the ADA minimum diameter of 1¼ inches.
In your Feb. 8 request, you state that the measurements provided with the ruling request for N330404 were incorrect, and that the correct measurement for the bathroom grab rails is 3.2cm or 1.2598 inches. You also argue that, while the ADA guidelines require that the bars support a weight of a minimum of 250 pounds and your product supports 220 pounds, the international standard ISP 17966:2016 for Assistive Products for Personal Hygiene that Support Users is applicable to your bars and that it requires a minimum weight support for 100kg or 220.462 pounds. You clarify that this standard applies to “all products with the intended purpose of supporting an occupant/user in a seated or lying position” who has no other point of support and that “it makes no sense to require a higher minimum weight for products whose function is to support and assist in sitting, standing or balancing and not to support the weight of the whole body.”
In both NY N330440 and NY N330404, CBP also found that the merchandise was not eligible for duty-free treatment under 9817.00.96, HTSUS because it was not marketed and sold just to the handicapped but was available to the general public, and the packaging did not indicate that the items were for the use of handicapped individuals (NY N330440). As such, CBP was unable to conclude that the bath access bars would be used predominantly by individuals suffering from a permanent or chronic physical or mental impairment.
In both the Feb. 1 and Feb. 8 requests for reconsideration, you also argue that, as a Class I medical device pursuant to Regulation (EU) 2017/745, the use and intended user of these articles must be defined by the manufacturer itself and that your product manual and description define the bathroom grab rails as intended for people who suffer from mobility problems or some other disability who need an extra point of support to make safe use of the toilet. You state that the bars are made available to the general public so that they can be installed in homes of family members who frequently care for the patient, and that they are offered in all markets so that the bars can be found in all bathrooms adapted for disabled people.
In your Feb. 6 and Feb. 8 requests, you argue that your products were erroneously found to be subject to Section 301 duties, pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, as products of China classified under subheading 8302.41.6080, HTSUS. In your request for reconsideration of NY N330404, described in greater detail above, you argue that even if the toilet grab rails are ineligible for duty-free treatment under 9817.00.96, HTSUS, the merchandise is not subject to Section 301 duties by operation of the exception enumerated in U.S. Note 20(w)(16).
In your Feb. 6 request, you requested reconsideration of NY N330461, dated February 3, 2023. NY N330461 addressed the eligibility of certain bath rails, PEPE item P30006/P30007 (“Pepe Bath Rails”) for duty-free treatment under subheading 9817.00.96, HTSUS. CBP found that the bath rails were ineligible for duty-free treatment under subheading 9817.00.96, HTSUS. CBP also found that the merchandise was subject to Section 301 duties, pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, as a product of China classified under subheading 8302.41.6080, HTSUS.
NY N330461 described the bath rails as follows:
The rails are made of [a] circular steel tube made of circular steel tube that is 1-inch in diameter, allow for 1.5 inches clearance from the wall, and have a weight-bearing capacity of 250 pounds. The subject rails have a straight tube length of 12 inches, an exposed flange on either end, and include all mounting hardware. These rails are installed on a wall near the toilet or in the shower or bathtub and are designed for people with difficulty in getting up, people at risk of falling, and people with reduced mobility. You state these bath rails will be sold online through Amazon, and through pharmacies, orthopedic shops and your distributors.
In your Feb. 6 request, you ask that we reconsider the application of Section 301 duties on the basis of new measurements that you have provided for the bath rails. You provide photos and new measurements that measure both the total length of the bar, and the length measured from the middle of the flange on either end. You note that while the total length of the bath rail is 37.5cm, the true length of the bar as measured from the middle of each flange is 30.5cm. In either scenario, you claim the product satisfies the requirements of an exclusion from Section 301 duties, specifically U.S. Note 20(w) to Subchapter III, Chapter 99, HTSUS.
The Nairobi Protocol to the Agreement on the Importation of Educational, Scientific and Cultural Materials of 1982, Pub. L. No. 97-446, 96 Stat. 2329, 2346 (1983), (“Nairobi Protocol”), 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.
Subheading 9817.00.96, HTSUS, covers: “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 articles . . . Other.” 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(a), Subchapter XVII, Chapter 98, HTSUS. While the HTSUS does not establish a clear definition of substantial limitation, in Sigvaris, 227 F. Supp 3d 1327, 1335 (CIT 2017), aff’d, 899 F.3d 1308 (Fed. Cir. 2018), the CIT explained that “[t]he inclusion of the word ‘substantially’ denotes that the limitation must be ‘considerable in amount’ or ‘to a large degree.’”
Subheading 9817.00.96, HTSUS, excludes “(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.” U.S. Note 4(b), Subchapter XVII, Chapter 98, HTSUS. Thus, eligibility within subheading 9817.00.96, HTSUS, depends on whether the article is “specially designed or adapted for the use or benefit of the blind or physically and mentally handicapped persons,” and whether it falls within any of the enumerated exclusions under U.S. Note 4(b), Subchapter XVII, Chapter 98, HTSUS.
In Sigvaris, Inc. v. United States, 227 F. Supp 3d at1336, the U.S. Court of International Trade (“CIT”) explained that:
The term “specially” is synonymous with “particularly,” which is defined as “to an extent greater than in other cases or towards others.” Webster’s Third New International Dictionary 1647, 2186 (unabr. 2002). The dictionary definition for “designed” is something that is “done, performed, or made with purpose and intent often despite an appearance of being accidental, spontaneous, or natural.” Webster’s Third New International Dictionary 612 (unabr. 2002).
We must first evaluate “for whose, if anyone’s, use and benefit is the article specially designed,” and then, whether “those persons [are] physically handicapped [].” Sigvaris, 899 F.3d at 1314. In other words, we must consider whether such persons are suffering from a permanent or chronic physical or mental impairment which substantially limits one or more major life activities.
The Court of Appeals for the Federal Circuit (“CAFC”) clarified that to be “specially designed,” the merchandise “must be intended for the use or benefit of a specific class of persons to an extent greater than for the use or benefit of others. This definition of ‘specially designed’ is consistent with factors that Customs uses in discerning for whose use and benefit a product is ‘specially designed” … we adopt them in our analysis ….” Id. at 1314-15.
Thus, to determine whether the grab bars are “specially designed” for the use or benefit of a class of persons to an extent greater than for others, we examine the following five factors used by U.S. Customs and Border Protection (“CBP”) and adopted by the CAFC in Sigvaris, 899 F.3d at 1314-15:
(1) physical properties of the article itself (e.g., whether the article is easily distinguishable in design, form and use from articles useful to non-handicapped persons);
(2) presence of any characteristics 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) importation by manufacturers or distributors recognized or proven to be involved in this class or kind of articles for the handicapped;
(4) sale in specialty stores that serve handicapped individuals; and
(5) indication at the time of importation that the article is for the handicapped.
See also T.D. 92-77 (26 Cust. B. 240 (1992)); HQ 556449 (May 5, 1992) (setting forth the five factors cited by Sigvaris).
Applying the five Sigvaris factors to both sets of products, the bath access bars and the toilet grab rails, yields the following:
The first factor asks whether the article is easily distinguishable, by properties of design and corresponding use, from articles useful to non-handicapped individuals. In prior rulings where CBP has evaluated eligibility under subheading 9817.00.96, HTSUS, we have highlighted that the legislative history of the ratification indicates that Congress intended the modification or adaptation of articles to be so significant as to clearly render the article for use by handicapped persons. CBP has previously considered the relevance of ADA compliance to eligibility under subheading 9817.00.96, HTSUS. In HQ H230457, dated July 19, 2018, in a case concerning grab bars, CBP considered a variety of grab bars, some of which were compliant with ADA standards and some which were not. CBP found that the grab bars that did not meet ADA standards and were also not marketed and sold just to the handicapped, were not eligible for duty-free treatment under 9817.00.96, HTSUS. CBP noted that there existed a probability that these articles would also be used by individuals with acute or transient disabilities. As such, CBP found that while the articles may be of benefit to the handicapped, they did not appear to be the type of equipment that was said to be specially designed or adapted for handicapped people. In contrast, in the same ruling, CBP found that grab bars that were compliant with ADA standards appeared unlikely to be acquired other than for the benefit or use of a handicapped individual. In 2018, the USCIT clarified that ADA compliance alone was insufficient to show that an item was “specifically designed or adapted” for the handicapped under subheading 9817.00.96, HTSUS. Danze, Inc. v. United States, 319 F. Supp. 3d 1312, 1326 n.22 (CIT 2018). Thus, although the grab bars are found not to be ADA compliant, we nonetheless consider the five Sigvaris factors. ADA guidelines provide for grab bars to be installed in toilet/water closets, showers, and bathtubs where applicable. When grab bars are required, the ADA guidelines provide minimum standards for compliance, specifically that the circular diameter must be between 1.25 and 2 inches and that the bar must be capable of bearing a weight of a minimum of 250 pounds.
In the case of the PEPE and KMINA bath access bars, we note that there are no ADA guidelines that are specific to tub-attached bath access bars of the type under consideration in N330440 and again in this reconsideration. However, general ADA guidelines for grab bars exist, as described above. The PEPE and KMINA bars are steel tube frames that mount to the side of a bathtub with a padded fixing system that adjusts to fit a bathtub wall. The diameter of both the PEPE bar and the KMINA bar is 1.0236 inches. The PEPE bar has a maximum weight bearing capacity of 220 pounds and the KMINA bars have a maximum weight bearing capacity of 250 pounds. Thus, even with the updated measurements provided for the purpose of this reconsideration, the PEPE and KMINA bars do not meet the minimum circumference measurement requirements for grab bars, and only the KMINA bars meet the minimum weight bearing requirements. In the past, CBP has determined that similar bath safety rails are ineligible for duty-free treatment under subheading 9817.00.96, HTSUS when the merchandise has not met ADA standards for grab bars. HQ H230457; NY N329309.
In the case of the PEPE toilet grab rails, we note that, unlike the bath access bars discussed above, there are specific ADA guidelines relating to grab bars placed in toilets and water closets. These guidelines provide that the circular cross section of grab bars should be between 1.25 inches (32mm) and 2 inches (51mm). Furthermore, the ADA guidelines for bars installed in toilets/water closets to be two horizontal bars, one on a side wall, measuring between 42 inches (1065mm) and 54 inches (1370mm), and the other on the rear wall, measuring a minimum of 36 inches (915mm). The PEPE toilet grab rails are either a single rail (P30011/P30027) or horizontal U-shaped double rails (P30021/P30027) that are secured to the wall by a mounting plate and extend from the wall on the left and/or right side of the toilet. You have provided updated measurements for the toilet grab rails under consideration. The new measurements show that the toilet grab rails meet the circular diameter requirement (between 1.25 and 2 inches) as style P30011/P30021 have a diameter of 1.2598 inches and style P30027/P30028 have a diameter of 1.5 inches. Neither style is capable of supporting a minimum of 250 pounds of weight (they both support up to 220 pounds). As described, the toil grab rails are not ADA compliant – they are not horizontal bars secured to the side or rear walls of the toilet/water closet and they are not capable of supporting a minimum weight of 250 pounds. You assert that your product satisfies the international standard ISO 17966:2016 for Assistive Products for Personal Hygiene that Support Users, which requires that the product support a person with at least 100kg (220 pounds) of weight and you state that “it makes no sense to require a higher minimum weight for products whose function is to support and assist in sitting, standing or balancing, and not to support the weight of the whole body.” However, the legal guideline for compliance with the Americans with Disabilities Act, which is what governs in the United States, sets the minimum weight requirement at 250 pounds and that, at a minimum for physical distinction, is the guideline that CBP considers when evaluating the physical properties of an article.
As noted above, in examining the physical properties of the article, CBP examines whether the article is easily distinguishable in design, form and use from articles useful to non-handicapped persons. This is a fact-specific inquiry and merely meeting ADA guidelines does not guarantee that an article satisfies this criterion. However, to the extent that ADA guidelines exist, CBP considers these to be a minimum threshold that the article must meet. The PEPE and KMINA bath access bars and the PEPE toilet grab rails do not meet ADA guidelines for grab bars and therefore do not satisfy the first Sigvaris factor.
The second factor asks whether there are any characteristics present in the article that create a substantial probability of its 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.
In the case of the PEPE and KMINA bath access bars, your submissions include a statement that the bath access bars meet safety standards and that it is “understood” that persons who are able-bodied would not need the items, but you do not provide specific proof to corroborate your statement. The fact that the articles are not ADA compliant and that they are not meant to be permanently installed means that there exists a probability that these articles will also be used by individuals with acute or transient disabilities, as well as the elderly or other non-handicapped who simply prefer to have extra support from slipping while entering the bath.
In the case of the PEPE toilet grab rails, you note that the toilet grab rails are intended for people who suffer from mobility problems or some other disability, and who, therefore, need an extra point of support to make safe use of the toilet. You also state that it is common for these rails to be installed in the homes of caregivers, and in bathrooms adapted for disabled persons in public centers. However, in your original submissions (as noted in N330404), you described the items as meant to be used by “elderly people, people with mobility problems or reduced mobility, people convalescing or rehabilitating from injuries, and people suffering from any kind of chronic or eventual disability, whether physical or mental.” (Emphasis added). We note that articles that are designed to be used in the case of acute or transient disability do not qualify for preferential treatment under 9817.00.96, HTSUS. While the articles may be used by the chronically handicapped as your own submissions suggest, they may also be used in the case of acute or transient disability. As such, we cannot say that use by the general public is so improbable that it would be fugitive. Moreover, the toilet grab rails do not meet ADA requirements for grab bars in toilets, as discussed above.
The third factor asks whether the articles are imported by manufacturers or distributors recognized or proven to be involved in this class or kind of articles for the handicapped.
In the case of the PEPE and KMINA bath access bars, you did not provide information on the manufacturer of these items in your request for reconsideration. However, you note that the bath access bars are sold at PEPE’s store on Amazon, an e-commerce retailer that carries a large variety of goods. In the case of the PEPE toilet grab rails, you did not provide information on the manufacturer of these items in your request for reconsideration. However, in N330404 we noted, based on your submissions, that the products will be sold online through Amazon, and to home healthcare dealers/providers, nursing homes, rehabilitation and therapy clinics, and through the importer's website. For this reconsideration, you only note that the items are sold through Amazon.
The fourth factor asks whether the articles are sold in specialty stores which serve handicapped individuals.
In the case of the PEPE and KMINA bath access bars, in N330440, CBP noted that the bath access bars were not marketed and sold just to the handicapped but were available to the general public, and that the packaging did not indicate that the items were for the use of handicapped individuals. For the reconsideration, you only note that the items are sold through Amazon. In the case of the PEPE toilet grab rails, in N330404 CBP noted, based on your submissions, that the products will be sold online through Amazon, and to home healthcare dealers/providers, nursing homes, rehabilitation and therapy clinics, and through the importer's website. For this reconsideration, you only note that the items are sold through Amazon.
The fifth factor asks whether the condition of the articles at the time of importation indicates that these articles are for the handicapped.
In the case of the PEPE and KMINA bath access bars, as CBP noted in N330440, the packaging for the articles did not indicate that they were for the use of handicapped individuals. You have not provided any additional information on packaging, and as this is an advance ruling and not a protest, we are unable to determine the condition of the article at the time of importation. In the case of the PEPE toilet grab rails bars, you have not provided any information on packaging, and as this is an advance ruling and not a protest, we are unable to determine the condition of the article at the time of importation.
In both of your requests for reconsideration, you reiterate that the bath access bars and the toilet grab rails are Class I medical devices under the Regulation (EU) 2017/745 (MDR), and as such, meet the requirements of medical devices specially designed or adapted for the use and benefit of the blind or permanently or chronically physically or mentally handicapped persons. With respect to the toilet grab rails, you note that the company indicates in its product user manual and in the description on Amazon, that the toilet grab rails are intended for people who suffer from mobility problems or some other disability.
While qualification under EU regulations is not binding in the United States, we have nonetheless reviewed your proposal. We note that the regulation covers “medical devices” and the bath access bars are classified as “class I” however this appears to be a broad category and not limited to adaptive articles as described in 9817.00.96, HTSUS and Sigvaris. You also state that the bath access bars (for example) are “classified as Class I according to Annex VIII, Rule 1, of Regulation (EU) 2017/745 (MDR), which are temporarily used non-invasive devices and are intended to support, replace or reset biological functions in order to alleviate disease, damage or deficiency…” A search of the EU regulation did not turn up the specific definition included as part of your statement. According to the regulation, Class I devices are non-invasive, but this again appears to be a broad category. Just because a device is classified as Class I, does not mean that it is necessarily an adaptive article under the Nairobi Protocol.
While we appreciate that the applicable EU standards may permit the manufacturer to define the use and the intended user of Class I medical devices, eligibility under subheading 9817.00.96, HTSUS in the United States proceeds under the five-factor test set forth in Sigvaris. Under the five-factor test, it is not the manufacturer alone who defines the use and intended user. Instead, CBP looks to objective criteria indicating whether the article has been specifically designed or adapted for the use or benefit of the handicapped. As discussed above, Congress intended and the CIT confirmed that the adaptation has to be significant. Thus, examining the five Sigvaris factors in totality and considering Congressional intent in establishing the 9817.00.96, HTSUS, provisions, we are in agreement with the findings in N330440 and N330404 that the bath access bars and the toilet grab rails do not meet the requirements for eligibility under subheading 9817.00.96, HTSUS.
We also note that while your Feb. 6 request did not request a reconsideration of CBP’s finding that the subject bath rail bars were ineligible for duty-free treatment under 9817.00.96, HTSUS, for the reasons stated above the bath rail bars would also fail to meet the five Sigvaris factors. The bars do not have a minimum circular diameter of at least 1.25 inches, thereby failing the ADA guidelines, and you have provided no further information regarding the bath rails that would allow us to consider the characteristics of the bath rails against the five Sigvaris factors.
Section 301
The United States Trade Representative (“USTR”) has determined that an additional ad valorem duty will be imposed on certain Chinese imports pursuant to USTR’s authority under Section 301(b) of the Trade Act of 1974 (“Section 301 measures”). See Section XXII, Chapter 99, Subchapter III, U.S. Note 20, HTSUS. The Section 301 measures apply to products of China enumerated in Section XXII, Chapter 99, Subchapter III, U.S. Note 20(f), HTSUS.
In your Feb. 6 request, you disagree with the finding in NY N330461 that, as a good that is a product of China and is classified under subheading 8302.41.6080, HTSUS, your merchandise is subject to an additional 25 percent ad valorem rate of duty as set forth in U.S. Note 20 to Subchapter III, Chapter 99, HTSUS. You argue that the bath rail bars are exempt from the Section 301 duties pursuant to the exclusion in U.S. Note 20(w) because they satisfy the technical measurement requirements of that exclusion.
Similarly, in your Feb. 8 request, you disagree with the finding in N330404, that, as a good that is a product of China and is classified under subheading 8302.41.6080, HTSUS, your merchandise is subject to an additional 25 percent ad valorem rate to duty as set forth in U.S. Note 20 to Subchapter III, Chapter 99, HTSUS. You argue that the toilet grab rails are exempt from Section 301 duties pursuant to U.S. Note 20(w) as they too satisfy the technical requirements of the exemption.
In both cases, we agree with the finding in the underlying rulings, N330461 and N330404, that Section 301 duties apply. This is because the cited exclusion, U.S. Note 20(w), expired on August 7, 2020, and no subsequent similar exclusion was enacted. As such, the exclusion does not apply to current or future shipments of merchandise that are products of China and classified in subheading 8302.41.6080, HTSUS.
Therefore, based on the facts provided, we do not agree that the bath access bars and toilet grab rails at issue in NY N330404 and NY N330440 meet the criteria for eligibility under subheading 9817.00.96, HTSUS. We also find that Section 301 duties apply to the merchandise at issue in rulings NY N330461 and NY N330404. Accordingly, we affirm NY N330440, NY N330404 and NY N330461.
Sincerely,
For Yuliya A. Gulis, Director
Commercial Trade and Facilitation