CLA-2 OT:RR:CTF:VS H055815 EE
Ivan Lavrikov
Schenker of Canada Limited
6555 Northwest Drive
Mississauga, ON L4V 1K2
Canada
RE: Modification of NY N033006, dated July 24, 2008; subheading 9817.00.96, HTSUS; vitreous china toilet bowls/toilets
Dear Mr. Lavrikov:
This is in reference to New York Ruling Letter (“NY”) N033006, dated July 24, 2008, issued on behalf of your client Wolseley Inc. (“Wolseley”), concerning the applicability of 9817.00.96, Harmonized Tariff Schedule of the United States (“HTSUS”), to certain vitreous china toilet bowls/toilets. We have reviewed NY N033006 and determined that while the conclusion that model PF1303WH toilet bowl does not qualify for preferential treatment under subheading 9817.00.96, HTSUS, is correct, the conclusion that models PFCT103WH, PF9303WH, and PF9403WH toilet bowls/toilets do not qualify for preferential treatment under subheading 9817.00.96, HTSUS, is incorrect. Therefore, NY N033006 is modified for the reasons set forth in this ruling.
Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. § 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed modification of NY N033006, as described below, was published in the Customs Bulletin on March 31, 2010. No comments were received in response to the notice.
FACTS:
NY N033006, dated July 24, 2008, provided, in pertinent part, the following facts:
Ferguson’s Proflo Americans with Disabilities Act (“ADA”) compliant toilet bowls provide comfortable, chair height seating for handicapped persons, and comply with the highest requirements of the ADA. Comfort height toilets are comparable to the height of an average household chair - just over 17 inches - making sitting down and standing up easier.
These toilet bowls are used primarily in commercial applications where establishments are required to have handicap accessible lavatories by code. They are also used (but not required) in some residential applications for the reason stated above (ease of use or comfort). U.S. Customs and Border Protection (“CBP”) classified the four products in NY N029335, dated June 12, 2008.
In NY N033006, CBP determined that the toilet bowls/toilets, models PFCT103WH, PF1303WH, PF9303WH and PF9403WH, are not eligible for duty-free treatment under subheading 9817.00.96, HTSUS. In support of this conclusion, CBP stated that although the toilet bowls’ height make them minimally acceptable under the ADA, their use by the non-handicapped is not fugitive. Additionally, CBP noted that the channel of trade for the bowls/toilets are as an option in a standard plumbing catalog, not that of a channel dedicated to items for the handicapped.
ISSUE:
Whether the vitreous china toilet bowls/toilets models PFCT103WH, PF9303WH, PF1303WH, and PF9403WH are eligible for duty-free treatment under subheading 9817.00.96, HTSUS.
LAW AND ANALYSIS:
The Agreement on the Importation of Educational, Scientific and Cultural Materials, known as the Florence Agreement, is an international agreement drafted by the United Nations Educational, Scientific, and Cultural Organization (UNESCO), adopted by it in Florence, Italy, in July 1950 (17 UST 1835; TIAS 6129). It provides for duty free treatment and the reduction of trade obstacles for imports of educational, scientific, and cultural materials in the interest of facilitating the international free flow of ideas and information. Materials falling within the coverage of the Florence Agreement include: books, publications and documents; works of art and collectors’ pieces of an educational,
scientific or cultural character; visual and auditory materials of an educational,
scientific or cultural character; scientific instruments and apparatus; and articles for the blind.
The Nairobi Protocol to the Florence Agreement, adopted by UNESCO in November 1976, broadened the scope of the Florence Agreement by removing some of its restrictions on articles otherwise entitled to duty-free status, and by expanding the Agreement to embrace technologically new articles and previously uncovered works of art, films, etc. One major new category of articles is: “all materials specially designed for the education, employment and social advancement of other physically or mentally handicapped persons…” Protocol to the Agreement on the Importation of Educational, Scientific, and Cultural Materials annex E (ii), opened for signature March 1, 1977, 1976 U.S.T. LEXIS 388. Thus, the Protocol is intended to afford duty-free treatment not only for articles for the blind, but all other handicapped persons without regard to the source of their affliction. The 97th Congress passed Pub. L. 97 446 to ratify the Nairobi Protocol in the United States. 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, however, did state 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. No. 97 564, 97th Cong. 2nd Sess. (1982). The Senate was concerned that persons would misuse this tariff provision to avoid paying duties on expensive products.
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 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.
U.S. Note 4(a), subchapter XVII, Chapter 98, HTSUS, states that, "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(b), subchapter XVII, Chapter 98, HTSUS, which establishes limits on classification of products in these subheadings, states that “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 regarding the toilet bowls/toilets in question is whether they are “specifically designed or adapted” for the use or benefit of the handicapped within the meaning of the Nairobi Protocol. 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 and the corresponding use specific to this unique design, from articles useful to non-handicapped individuals; 2) whether any characteristics are present in an article that create a substantial probability of 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; 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. Each of these factors is to be weighed against each other to determine whether an article is specially designed or adapted for the handicapped. See also T.D. 92-77 (26 Cust. Bull. 1, August 26, 1992).
The goods in question consist of four different models of vitreous toilet bowls/toilets, three of which, upon installation are designed to measure 17 inches from the floor to the top of the bowl rim. An additional model, PF1303WH, measures 16.5 inches from the floor to the top of the bowl rim. The harmonized ASME A112.19.2/CSA B45.1-2008 National Consensus Standards for Vitreous China Plumbing Fixtures provides that adult water closets must have a minimum rim height of 13.5 inches (343 mm). The height of the goods at issue clearly distinguishes them from standard toilets which measure 14 inches to 15 inches from the floor to the top of the bowl rim.
You state that the toilets at issue comply with standards issued under the ADA and are designed for use by physically handicapped persons, who suffer from arthritis, joint diseases, handicaps and other maladies which make it difficult for them to lift themselves off of low chairs or benches. The higher elevation of the toilet makes it easier for the handicapped persons to lower themselves to and from the toilet seat. You advise that if the toilet angle is raised by two inches, there is a two-thirds (67%) reduction in the negative angle of the knee joint. The degree to which the toilet user’s weight is pitched rearward is also reduced by a like amount. This makes it much easier for a person to rise from the seat.
The ADA Accessibility Guidelines for Buildings and Facilities (“ADAAG”) provide that “the height of water closets shall be 17 in to 19 in (430 mm to 485 mm), measured to the top of the toilet seat.” 28 C.F.R. § 36, Appendix A, 4.16.3. The ADAAG provides that the typical seat height of a wheelchair for a large adult male is 19 inches (485 mm). 28 C.F.R. § 36, Appendix A, A4.2.4. We note that a standard toilet with a thick toilet seat as well as comfort height toilets that measure 16.5 inches from the floor to the top of the bowl rim could presumably comply with the ADAAG and be utilized by handicapped as well as non-handicapped individuals. We note that several companies market comfort height toilets for general use. See http://www.homedepot.com. However, we find it unlikely that toilets that measure 17 inches from the floor to the top of the bowl rim would be acquired other than for the benefit or use of a handicapped individual who is likely to benefit when transferring from the wheelchair to the toilet.
Lastly, we note that although the toilet bowls/toilets are sold by a company that markets products to the general public, the goods at issue are specifically advertised as ADA compliant.
You have provided information stating that the Canada Border Services Agency (“CBSA”) classified Wolseley’s toilets under Canada’s tariff item No. 9979.00.00 as goods specifically designed to assist persons with disabilities in alleviating the effects of those disabilities. While CBP is not bound to abide by another country’s rulings, foreign rulings may be instructive. See T.D. 89-80.
Based on the above factors, we find that the toilet bowls with a bowl rim height of 17 inches or more are “specially designed and adapted” for the use or benefit of the handicapped people and are entitled to duty-free treatment under 9817.00.96, HTSUS.
HOLDING:
Based upon the information before us, we find that the vitreous china toilet models PFCT103WH, PF9303WH and PF9403WH are eligible for duty-free treatment under subheading 9817.00.96, HTSUS. However, per NY N033006, model PF1303WH toilet bowl does not qualify for preferential treatment under subheading 9817.00.96, HTSUS.
EFFECT ON OTHER RULINGS:
NY N033006, dated July 24, 2008, is hereby modified consistent with the foregoing. In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division