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NY R01814




May 17, 2005

CLA-2-39:RR:NC:N2:221 R01814

CATEGORY: CLASSIFICATION

TARIFF NO.: 3924.90.5500

Mr. Ron Parsons
Parsons ADL Inc.
RR#2, 1986 Sideroad 15
Tottenham, Ontario, Canada L0G 1W0

RE: The tariff classification of showerheads from Canada.

Dear Mr. Parsons:

In your letter dated April 18, 2005, you requested a tariff classification ruling.

The products are described as showerhead kits, styles 16B005A, 16B006A, 16B007A and 16B008. Each kit includes a showerhead, wall mount, hose, diverter valve and rubber washers. The product is made predominantly of plastics.

The applicable subheading for the showerhead kits will be 3924.90.5500, Harmonized Tariff Schedule of the United States (HTS), which provides for tableware, kitchenware, other household articles and toilet articles, of plastics: other: other. The rate of duty will be 3.4 percent ad valorem.

You request duty free treatment for these articles under the Nairobi Protocol. 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 of the Harmonized Tariff Schedule of the United States (HTS).

In Treasury Decision 92-77 (Customs Bulletin, Vol. 26 (1992)), Customs stated that factors to consider in determining whether an article has been “specially designed or adapted” for the handicapped include whether there are characteristics that create a substantial probability of use by the chronically handicapped, whether the article is easily distinguishable from articles useful to the general public or whether use of the article by the general public is so improbable that such use would be fugitive. These factors are collectively referred to as the "probability of general public use" factor.

In your submission you state that the design features of this article are of great utility to handicapped individuals. “They can use the shower head with or without the assistance of a caregiver. Designed with an extra long hose so that they may be used while lying in the tub or sitting on a bath bench. This feature/benefit is not available on shower head kits sold via mainstream retailers. The shower heads are designed with an on/off switch on the head itself, to facilitate control of the unit by the handicapped user and/or caregiver.”

However, we find, for example, a very similar item, a showerhead with a hand trigger to stop water when released and with a 7 foot long, reinforced, non-tangling, shower hose at www.supershowersystem.com. The company clearly sells to the general public. The site advertises that while the showerhead is also perfect for the elderly or the handicapped, it is “perfect for washing the shower/tub, large objects, children and pets.” The showerhead with extended reinforced hose is “Great for getting to those hard-to-reach areas,“ “Helps to keep your tub clean,” and is the “Perfect tool for washing away hairs, soap scum and dirt rings in your shower/tub.”

Therefore, while at least one use of your pictured items might be for the handicapped, they, or very similar items, have too high a “probability of general public use” to meet the requirements in the language of subheadings 9817.00.92 through 9817.00.96 of the HTS. See Headquarters Ruling Letter 556449, dated May 5, 1992, for a discussion of this issue.

Even if you provide the evidence to establish it as true, it would not be sufficient that your specific cartons of this import are sold to or for the handicapped when very similar items are routinely sold to the general public. This prevents them from being “specially designed” for the use or benefit of the handicapped.

Therefore, we do not agree that a secondary classification will apply for this item in HTS 9817.00.96, as specially designed or adapted for the use or benefit of the permanently or chronically physically or mentally handicapped.

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 classification in 9817.00.96 of this item, contact National Import Specialist James Sheridan at 646-733-3012. If you have any other questions regarding the ruling, contact National Import Specialist Joan Mazzola at 646-733-3023.

Sincerely,

Robert B. Swierupski
Director,

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