CLA-2-39:OT:RR:NC:N4:415
Cathy Yu
Yu, Cathy C.
580 North Park Avenue
Pomona, CA 91768
RE: The tariff classification of foam grip tools from China.
Dear Ms. Yu:
In your letter dated July 26, 2024, you requested a tariff classification ruling on behalf of your client, WeVeel, LLC.
A sample was provided and will be returned separately.
The products under consideration are described as the 2-Direction Adaptive Foam Grip Set, item number 70775. This set includes four differently sized flexible foam grips that are usable two ways. Each foam color has a different sized port to accommodate different art instrument widths. There are two hole positions that accommodate all stages of hand grip, from a stage 1 Palmar Supinate grasp up to a stage 5 mature / dynamic tripod grip. The submission indicates these grips are made wholly from ethylene vinyl acetate (EVA) foam plastic and are designed for use by a person with a disability to aid them in holding paint brushes, which will not be included in the set. Per your correspondence, this product is intended for and will be used by both children and young adults with permanent disabilities. Further, they will be sold primarily to facilities that house or work with these particular individuals for use in their art programs.
As this 2-Direction Adaptive Foam Grip Set, item number 70775, would be considered an article of plastic, and as it is not more specifically provided for elsewhere, the applicable subheading will be 3926.90.9989, Harmonized Tariff Schedule of the United States (HTSUS), which provides for [o]ther articles of plastics and articles of other materials of headings 3901 to 3914: [o]ther: [o]ther: [o]ther. The column one, general rate of duty is 5.3 percent ad valorem.
In your submission, you requested consideration of a secondary classification for the subject grips 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 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 Cust. Bull. 35, dated August 26, 1992), U.S. Customs and Border Protection (CBP) 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.CBP 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 CBP's 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, CBP 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.
Based on the information provided, it is the opinion of this office that these adaptive foam grips under consideration are specifically designed for use by the handicapped for secondary classification purposes. In our view, they satisfy the description set forth in Chapter 98, Subchapter XVII, U.S. Note 4(a). Therefore, we agree that a secondary classification would apply to these grips under 9817.00.96, HTSUS, and will be free of duty and the Merchandise Processing Fee (MPF) upon importation into the United States.
Please note, the additional duties imposed by subheading 9903.88.15 do not apply to goods for which entry is properly claimed under a provision of chapter 98 of the HTSUS, except for goods entered under subheadings 9802.00.40, 9802.00.50, 9802.00.60, and 9802.00.80.
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 holding set forth above applies only to the specific factual situation and merchandise description as identified in the ruling request.This position is clearly set forth in Title 19, Code of Federal Regulations (CFR), Section 177.9(b)(1).This section states that a ruling letter is issued on the assumption that all of the information furnished in the ruling letter, whether directly, by reference, or by implication, is accurate and complete in every material respect.In the event that the facts are modified in any way, or if the goods do not conform to these facts at time of importation, you should bring this to the attention of CBP and submit a request for a new ruling in accordance with 19 CFR 177.2.Additionally, we note that the material facts described in the foregoing ruling may be subject to periodic verification by CBP.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR 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 Kristopher Burton at [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division