CLA-2-73:OT:RR:NC:N1:113
Ms. Lisa Pietz
Page & Jones, Inc.
2850 Wall Triana Highway, Suite 205
Huntsville, AL 35824
RE: The tariff classification of a foot anchor from China
Dear Ms. Pietz:
In your letter dated January 12, 2021, on behalf of your client Vive Health LLC, you requested a ruling on a foot anchor. A sample, photographs and an Owner’s Manual were submitted for our review. The sample will be returned as you requested.
The subject article is identified as a foot anchor that will be used by a person to lift himself out of bed without assistance after shoulder, elbow or hand surgery/injury, or a stroke. In your letter you stated that “The foot anchor is a wood base of bamboo approximately 12 inches x 16 inches with an area for mounting the actual metal anchor. The anchor has a padded hook that can be pushed to the side when not in use. The aluminum anchor/hook is approximately 3 inches in height and 5 inches in length.” The product is composed of approximately 85 percent bamboo, 10 percent aluminum and 5 percent rubber.
To get out of bed, the Owner’s Manual instructs the user to slide the foot anchor under the mattress, hook your foot under the padded rod, use your foot to pull yourself up to a sitting position, place both legs over the side of the bed and stand up. The item is sold on the websites of Vive Health and Amazon.
The foot anchor is composed of wood, aluminum and rubber. Classification of merchandise under the Harmonized Tariff Schedule of the United States (HTSUS) is in accordance with the General Rules of Interpretation (GRIs), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Since no one heading in the tariff schedules covers the components of the foot anchor in combination, GRI 1 cannot be used as a basis for classification. GRI 3(b) provides that mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale shall be classified as if they consisted of the material or component which gives them their essential character. The essential character of an item may be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the article. GRI 3(c) states that when goods cannot be classified by reference to GRI 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.
In the opinion of this office, the wood and aluminum components are of equal importance. In this case, neither the wood component nor the aluminum component imparts the essential character, since both perform significant roles in the function of the foot anchor. Therefore, in accordance with GRI 3(c), the foot anchor will be classified in the heading which appears last in the tariff.
You proposed classification for the foot anchor in heading 4421, HTSUS, as an article of wood. However, since the wood component and the aluminum component each perform an important role in the function of the foot anchor, in accordance with GRI 3(c), the subject anchor will be classified in the heading which appears last in the tariff. Therefore, the foot anchor will be classified in heading 7616, HTSUS, which provides for other articles of aluminum.
In your submission you requested consideration of a secondary classification for the foot anchor 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.”
The primary issue is whether the article 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. Since it is difficult to establish a clear definition of what is specially designed or adapted, various factors must be utilized on a case-by-case basis to determine whether a given article is specially designed or adapted within the meaning of this statute.
In T.D. 92-77, dated August 3, 1992 (26 Customs Bulletin 35, dated August 26, 1992), Customs set forth its position regarding certain issues arising under the Nairobi Protocol. The first issue concerned the interpretation of the term specially designed or adapted. Customs pointed out that a primary factor to be considered in determining whether an article was specially designed and adapted was whether the article was easily distinguishable, by properties of the design and the corresponding use specific to this unique design, from articles useful to non-handicapped individuals. Therefore, if an article is solely dedicated for use by the handicapped it is Customs position that this would be conclusive evidence that the article is specially designed or adapted for the handicapped for purposes of the Nairobi Protocol.
In HQ 556449, dated May 5, 1992, Customs set forth five factors it would consider in determining whether an article is specially designed or adapted for the use or benefit of handicapped persons. 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.
In N277531 dated July 27, 2016, Customs and Border Protection stated that “individuals who are undergoing rehabilitation after surgery or recovering from a broken limb would be considered to have transient disabilities.” Chapter 98, Subchapter XVII, U.S. Note 4(b) states that this heading does not cover articles for transient disabilities. We note that the information that you provided does not indicate that the foot anchors are designed to be used exclusively by the permanently or chronically handicapped. The product literature depicts a woman with her arm in a sling and states that “Whether you have had a shoulder injury or surgery, stroke, or just a weak core, getting up is easy without pushing with your upper body.” The subject anchors appear to be beneficial to individuals who are undergoing rehabilitation after surgery or recovering from a broken limb which would be considered transient disabilities. Although the foot anchor could be used by someone who meets the definition of disabled for heading 9817 purposes, the use of this anchor by those who are not permanently or chronically handicapped is not fugitive.
It is our position that the foot anchors would help the elderly and injured, and would appeal to many people who are not impaired. The foot anchors are not marketed and sold in specialty stores to the handicapped but are sold to the general public. Based on the information provided, it is the opinion of this office that the foot anchor under consideration is not specifically designed for use by the handicapped for secondary classification purposes. In our view, the foot anchors do not satisfy the description set forth in Chapter 98, Subchapter XVII, U.S. Note 4(a). Therefore, a secondary classification would not apply to the foot anchor under 9817.00.96, HTSUS.
The applicable subheading for the foot anchor will be 7616.99.5190, HTSUS, which provides for other articles of aluminum, other, other…other. The rate of duty will be 2.5 percent ad valorem.
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 on the World Wide Web at https://hts.usitc.gov/current. Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 7616.99.5190, 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 subheadings 7616.99.5190, 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, 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 Ann Taub at [email protected]. Sincerely, Steven A. Mack Director National Commodity Specialist Division