Great World Customs Service
518 Eccles Ave.
South San Francisco, CA 94080
RE: The classification and eligibility under the Nairobi Protocol of a steel bathtub safety rail from China
Dear Mr. Ting:
In your letter dated November 11, 2022, you requested a tariff classification and eligibility under the Nairobi Protocol ruling on behalf of Einstein Associates, LLC.
The merchandise under consideration is described as a Vaunn Medical Adjustable Bathtub Safety Rail Shower Grab Bar Handle, SKU M775. You state this bathtub safety rail is a "safety-assist" product that is designed to support a person moving in and out of a bathtub. It is constructed of a one-piece steel frame that measures 1 inch in diameter, 17 inches tall, 6 inches deep and 8 inches wide. The rail mounts to the side of a bathtub with a padded rubber clamp that adjusts to fit a bathtub wall from 3 to 7 inches wide. It is designed to support individuals up to 300 pounds. The product can be used in bathtubs around the house and will be sold to home healthcare dealers/providers, nursing homes, rehab and therapy clinics, and through the importer's website.
The applicable subheading for the Vaunn Medical Adjustable Bathtub Safety Rail Shower Grab Bar Handle, SKU M775 will be 7324.90.0000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for Sanitary ware and parts thereof, of iron or steel: Other, including parts. The rate of duty will be free.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at https://hts.usitc.gov/current.
In your submission you requested consideration of a secondary classification for the bathtub safety rail under 9817.00.96, HTSUS, which applies to articles and parts of articles specifically designed or adapted for the use or benefit of the permanently or chronically physically or mentally handicapped. Chapter 98, Subchapter XVII, U.S. Note 4(a), HTSUS, defines the term blind or other physically or mentally handicapped persons as including "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 as follows: (b) 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 is whether the bathtub safety rail is specially designed or adapted for the use or benefit of the handicapped within the meaning of the Nairobi Protocol. Although the legislative history of the Nairobi Protocol discusses the concerns of Congress that the design, modification, or adaptation of an article must be significant so as to clearly render the article for use by handicapped individuals, no specific definition of these terms was established by Congress. 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, form, and the corresponding use specific to this unique design, from articles useful to non-handicapped persons); (2) whether any characteristics are present 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) 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.
A product's compliance with the ADA has been an important consideration in CBP's determination that an article is easily distinguishable from articles useful to non-handicapped individuals. In H230457, dated July 19, 2013, CBP found that certain bathroom fixtures 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." Multiple CBP ruling letters have ruled that 9817.00.96 applied to grabrails which are mounted to walls in and around showers and bathtubs, that are used for stabilization when entering or leaving the showers or bathtubs, and that meet ADA Accessibility Guidelines, Section 4.26, Handrails, Grab Bars, and Tub and Shower Seats. Those 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 inches (38mm). We note that the subject bathtub safety rails are designed to support up to 300 pounds, but that the rail is only 1 inch in diameter. The space between the wall and the bathtub safety rail does not apply to this article as it is not mounted to the wall. While there are no ADA standards written specifically for bathtub safety rails, we note that these subject rails do not meet all ADA standards for grab bars since they are only 1 inch in diameter. Therefore, it is the opinion of this office that this bathtub safety rail cannot be claimed to be ADA-compliant, and we do not find that its physical properties are readily distinguishable from articles useful to non-handicapped individuals. Additionally, we note that the packaging does not indicate that this item is for the use of handicapped individuals, the marketing materials provided show a child using the bathtub safety rail, and that you note this bathtub safety rail "can be easily moved and installed in another bathroom". 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 bathtub safety rail 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. Thus, we do not believe this bathtub safety rail is the type of equipment which can be said to be specially designed or adapted for handicapped people.
This finding is consistent with Headquarters Ruling H230457, dated July 19, 2013, where CBP found that bath grips, for which there is no ADA standard, were not ADA compliant and therefore not articles specially designed and adapted for the handicapped, and therefore, not eligible for preferential treatment under subheading 9817.00.96, HTSUS.
You stated in your submission that ruling N246904 "affirmed the application of 9817.00.96 to grab bars/rails in bathrooms which have a sufficient gap from the wall to be grasped and which are both capable of sufficiently securing/attaching to a wall and sufficiently strong in themselves that they can easily take the full weight of a typical adult who would otherwise fall." However, it our opinion that ruling N246904 does not apply in this case because the subject bathtub safety rail does not mount to a wall. You also stated that another ruling, N048564, determined that a "similar tub safety bar mount that clamped onto the side of bathtubs" could be classified under 9817.00.96. However ruling N048564 did not provide any measurements that could be used to make any determination on ADA compliance, nor did it provide any details on the packaging or marketing materials.
Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 7324.90.0000, HTSUS, unless specifically excluded, are subject to an additional 25 percent ad valorem rate of duty. At the time of importation, you must report the Chapter 99 subheading, i.e., 9903.88.03, in addition to subheading 7324.90.0000, HTSUS, listed above.
The HTSUS is subject to periodic amendment, so you should exercise reasonable care in monitoring the status of goods covered by the Note cited above and the applicable Chapter 99 subheading. For background information regarding the trade remedy initiated pursuant to Section 301 of the Trade Act of 1974, including information on exclusions and their effective dates, you may refer to the relevant parts of the USTR and CBP websites, which are available at https://ustr.gov/issue-areas/enforcement/section-301-investigations/tariff-actions and https://www.cbp.gov/trade/remedies/301-certain-products-china respectively.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Jennifer Jameson at [email protected].
Steven A. Mack
National Commodity Specialist Division