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HQ 557458
Octboer 28, 1993
CLA-2 CO:R:C:S 557458 MLR
CATEGORY: Classification
TARIFF NO.: 9817.00.96
Mr. Steven G. Cooper Cooper & Cooper Sales Inc.

4861 24th Avenue Port Huron, MI 48060
RE: Eligibility under the Nairobi Protocol; specially designed or adapted for the handicapped; shower/bath seats; wall mount grab bars; bathtub safety rails; safety barrier free assist items; support
Dear Mr. Cooper:

This is in reference to your letter of June 25, 1993, requesting a ruling regarding the applicability of subheading 9817.00.96, Harmonized Tariff Schedule of the United States (HTSUS), to shower/bath seats, wall mount grab bars, and bathtub safety rails.
FACTS:
The articles at issue are referred to as "safety barrier free assist items" which are manufactured in Canada. Specifically, a brochure was submitted featuring shower/bath seats, grab bars which are mounted to walls in showers and bathtubs, and bathtub safety rails which are mounted to the edges of bathtubs. It is stated that these articles are directed to the handicap market and are designed to assist those that choose to make them available either at home or at a public place such as motels or long-term care facilities. Some of the articles are portable.

ISSUE:

Whether the shower/bath seats, grab bars, and bathtub safety rails are "specially designed or adapted" for the handicapped within the meaning of the Nairobi Protocol, and, therefore, eligible for duty-free treatment under subheading 9817.00.96, HTSUS.


LAW AND ANALYSIS:

The Nairobi Protocol to the Agreement on the Importation of Educational, Scientific, and Cultural Materials Act of 1982, established the duty-free treatment for certain articles for the handicapped. Presidential Proclamation 5978 and Section 1121 of the Omnibus Trade and Competitiveness Act of 1988, provided for the implementation of the Nairobi Protocol into subheadings 9817.00.92, 9817.00.94, and 9817.00.96, HTSUS. These tariff provisions specifically state 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 as follows:

(b) 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 articles at issue is whether they are "specially designed or adapted" for the use or benefit of the handicapped within the meaning of the Nairobi Protocol. Specifically, Headquarters Ruling Letter (HRL) 556449 dated May 5, 1992, addressed this issue and determined that the likelihood of the general public utilizing a bedside toilet or dressing aids was remote. Consequently, it was held that these articles, as well as toilet support arms, shower stools, and grab rails which are mounted to walls in and around showers and bathtubs for stabilization when entering or leaving a shower or bathtub were specially designed or adapted for the handicapped, and, therefore, eligible for duty-free treatment under subheading 9817.00.96, HTSUS. Because the shower/bath seats, wall mount grab bars, and bath tub safety rails in this case are similar to those discussed in HRL 556449, and serve the same purposes, we find that they are eligible for duty-free treatment under subheading 9817.00.96, HTSUS, as well.

HOLDING:

On the basis of the information submitted, the shower/bath seats, wall mount grab bars, and bath tub safety rails are considered to be articles specially designed or adapted for the handicapped, and, therefore, eligible for duty-free treatment under subheading 9817.00.96, HTSUS.

Sincerely,
John Durant, Director 

 
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