H330748

HQ H330748 August 7, 2023 OT:RR:CTF:VS H330748 UBB CATEGORY: Classification 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 pac

….” 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 cons