CLA-2-76:OT:RR:NC:N1:113
Ms. Lisa Brandenberger
Lee Hardeman Customs Broker, Inc.
5036 Clark Howell Hwy.
College Park, GA 30349
RE: The tariff classification of Aqua Stairs® from China
Dear Ms. Brandenberger:
In your letter dated January 18, 2023, on behalf of your client MC Imports LLC, you requested a ruling on an aluminum swim ladder. A description, photographs, and advertisements were submitted for our review.
The articles under consideration are identified as aluminum Aqua Stairs® (swim ladders) that will be used by people and pets to easily get in and out of the water. You indicated that “these ladders are designed with a staircase style angle to enable people who can negotiate staircase style steps to enter and exit the water.” The product literature indicates these ladders can be installed on boats, seawalls, piers, and docks.
You proposed classification for the Aqua Stairs® in heading 7616, Harmonized Tariff Schedule of the United States (HTSUS), as an other article of aluminum. We agree. The applicable subheading for the Aqua Stairs® will be 7616.99.5130, HTSUS, which provides for “Other articles of aluminum: Other: Other: Other: Ladders.” The rate of duty will be 2.5 percent ad valorem.
In addition, you requested a secondary classification for the Aqua Stairs® 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 you provided does not indicate that the Aqua Stairs® are designed to be used exclusively by the permanently or chronically handicapped. According to your submission, many people, including the elderly and those with disabilities, can use these ladders where conventional ones simply will not work for them. You indicate, “this includes people with no upper body strength due to double mastectomies, people missing arms, and even double leg amputees, among other restrictive physical issues.” Further, you state these ladders are also purchased as a safety item for pet owners. The product literature depicts the ladder being utilized by people and dogs and indicates, “These angled, stair-step ladders work for both people and pets.” Although the Aqua Stairs® could be used by someone who meets the definition of disabled for heading 9817 purposes, the use of the product by those who are not permanently or chronically handicapped is not fugitive.
It is our position that while the Aqua Stairs® would help the elderly and injured, they would likewise appeal to many people who are not impaired. The swim ladders are not marketed and sold in specialty stores to the handicapped but are sold to the general public. The documentation offers no basis of how the ladders possess any distinguishable features to be recognizable as “specially designed or adapted” for the use or benefit of handicapped persons. Based on the information provided, it is the opinion of this office that the merchandise under consideration is not specifically designed for use by the handicapped for secondary classification purposes. In our view, the articles do not satisfy the description set forth in Chapter 98, Subchapter XVII, U.S. Note 4(a). Therefore, a secondary classification would not apply under 9817.00.96, HTSUS. Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 7616.99.5130, 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 7616.99.5130, HTSUS, listed above.
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. 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