OT:RR:CTF:VS H264882 RMC
John M. Peterson
Neville Peterson LLP
17 State Street – 19th Floor
New York, NY 10004
Re: Subheading 9817.00.96; Ceramic Sinks from China
Dear Mr. Peterson:
This is in response to your February 9, 2015 and February 13, 2015 requests for rulings on the applicability of subheading 9817.00.96, Harmonized Tariff Schedule of the United States (“HTSUS”) to certain sinks imported by your client, Gerber. Technical specifications for all sinks at issue were submitted with your request.
FACTS:
The products at issue are bathroom sinks of vitreous china measuring 18”-21” in width, 14”-27” in length, and 4”-8.75” in depth. They include the following models:
North Point Wall Hunt Lavatory NH-12-474
North Point Wall Hung Lavatory NH-12-478
North Point Semi-Recessed Lavatory 12-822
North Point Semi-Recessed Lavatory 12-825
Wicker Park 12-592
Wicker Park 12-599
West Point Space Saver Ledge Type 12-354
Eaton Wheelchair 12-464
Eaton Wheelchair 12-466
Eaton Wheelchair 12-468
Maxwell™ Round Self-Rimming Lavatory 12-881
Maxwell™ Round Self-Rimming Lavatory 12-884
Maxwell™ Round Self-Rimming Lavatory 12-888
Plymouth™ Ledge Type 12-314
Monicello II™ Back Splash 12-651
Monicello II™ Back Splash 12-654
Monicello II™ Back Splash 12-658
Logan Square™ Petite Undercounter 12-765
Each sink has drains that are positioned at the rear of the basin, with the underside of the sink being smooth and free of impediments. The sinks are designed to be installed in a bathroom counter such that the basin rests below the level of the countertop.
Along with your ruling request, you submitted the Americans with Disability Act (“ADA”) Section 606.1 requirements addressing sinks. You state that the sinks comply with the ADA requirements and that they are thus eligible for duty-free treatment under subheading 9817.00.96, HTSUS as items “specifically designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons.”
ISSUE:
Whether the sinks are eligible for duty-free treatment under subheading 9817.00.96, HTSUS as items “specifically designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons.”
LAW AND ANALYSIS:
Subheading 9817.00.96, 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 1983. Pub. L. 97-446, § 161, 96 Stat. 2329, 2346 (1983). 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 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.
You argue that the sinks at issue are “specifically designed or adapted” for the handicapped because they comply with ADA requirements. As a threshold matter, we note that the requirements in Title III, § 606 of the ADA primarily address installation, not physical properties of the items themselves:
Advisory 606.1 General. If soap and towel dispensers are provided, they must be located within the reach ranges specified in 308 . . .
606.2 Clear Floor Space. A clear floor space complying with 305, positioned for a forward approach, and knee and toe clearance complying with 306 shall be provided.
606.3 Height. Lavatories and sinks shall be installed with the front of the higher of the rim or counter surface 34 inches (865mm) maximum above the finished floor or ground.
606.4 Faucets. Controls for faucets shall comply with 309 . . .
606.5 Exposed Pipes and Surfaces. Water supply and drain pipes under lavatories and sinks shall be insulated or otherwise configured to protect against contact. There shall be no sharp or abrasive surfaces under lavatories and sinks.
Only one of these five requirements (606.5) addresses a physical characteristic of the sink itself. Moreover, no physical requirements are set forth for towel dispensers and soap dispensers. Therefore, if we conclude that the ADA requirements are met merely because of the way certain items are installed, all soap dispensers and towel dispensers could conceivably comply with the ADA if they are capable of installation within ADA-mandated reach ranges. And if we accept the argument that all ADA-compliant articles are eligible for duty-free treatment under subheading 9817.00.96, HTSUS, all soap dispensers and towel dispensers would be eligible for duty-free treatment. We do not accept this reading of the requirements in the ADA and subheading 9817.00.96, HTSUS.
In any event, with respect to the items at issue, CBP has no way of knowing whether the sinks will be installed in accordance with ADA requirements after importation. Accordingly, we cannot determine whether the sinks will comply with the ADA as imported. Furthermore, CBP has consistently held that ADA compliance alone is insufficient to show that an item is “specifically designed or adapted” for the handicapped under subheading 9817.00.96, HTSUS. See Headquarters Ruling (“HQ”) H246652, dated May 6, 2015. Instead, CBP examines each item on a case-by-case basis, balancing several different factors, in determining whether an item was “specifically designed or adapted” for the handicapped. As you point out, most important among these factors is the “physical properties of the article itself,” or whether it is “easily distinguishable . . . from articles useful to non-handicapped individuals.”
Here, the physical properties of the sinks at issue do not distinguish them in any way from sinks useful to non-handicapped people. You state that the “differences between an ADA sink and a non-ADA sink are obvious” because of the positioning of the bowl and drain pipe. Again, the positioning of the bowl relates to installation, not the physical properties of the sink itself. Furthermore, we find it unlikely that the public would observe the location of a sink’s drain and conclude anything about whether the item was 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. 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 cite to a Canadian court case, Wolseley Canada, Inc. v. Canada Border Services Agency, AP-2012-006, which did not consider the extent of general public use when it decided whether an item was “specifically designed to assist persons with disabilities,” and held that similar sinks were eligible for duty-free treatment. 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 use by the public does not automatically disqualify a good under subheading 9817.00.96, here the extent of probable public use is so great that it precludes us from finding that the sinks are “designed or adapted” for the handicapped. As stated above, nothing distinguishes the sinks at issue as designed or adapted for the handicapped; they appear identical to those used by the general public. Indeed, it appears that the sinks are in fact widely used by the general public, as the sinks are available online from a large variety of suppliers that sell to the general public, and you have not provided evidence that the sinks are sold through specialty stores that serve handicapped people.
On balance, we find that the information provided does not establish the sinks’ eligibility for duty-free treatment under subheading 9817.00.96, HTSUS.
HOLDING:
The sinks are sinks ineligible for duty-free treatment under subheading 9817.00.96, HTSUS as items “specifically designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons.”
Sincerely,
Monika R. Brenner, Chief
Valuation and Special Programs Branch