CIT Finds ADA Compliance Not Enough for Classification in Special Duty-Free Subheading
Goods don’t qualify for duty-free treatment under the Nairobi Protocol simply because they are made to comply with the Americans with Disabilities Act, the Court of International Trade said in a June 19 decision. Toilets imported by Danze are classified as regular toilets, rather than falling under a special tariff provision for products specially designed for the handicapped, because they are meant and advertised for general use, despite including all features required under ADA standards for toilets, CIT said.
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Danze had argued the toilets were classifiable in the Harmonized Tariff Schedule duty-free subheading 9817.00.96, which covers “Articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons; parts and accessories (except parts and accessories of braces and artificial limb prosthetics) that are specially designed or adapted for use in the foregoing articles . . . Other.”
Instead, the toilets should be classified in subheading 6910.10.00 for “Ceramic sinks, washbasins, washbasin pedestals, baths, bidets, water closet bowls, flush tanks, urinals and similar sanitary fixtures: Of porcelain or china,” dutiable at 5.8%, CIT said.
While the HTS doesn’t clearly define what it means to be “specially designed” for use by the handicapped, it has previously noted that the subheading was not intended by Congress so that “an insignificant adaptation would result in duty-free treatment for an entire relatively expensive article,” CIT said. “Rather, ‘the modification or adaptation must be significant so as to clearly render the article for use by handicapped persons.’”
CBP has recognized several factors for determining whether a good qualifies as “specially designed or adapted” for use by the handicapped, including the physical properties of the product, the probability of general public use, the specific design of the particular product, and whether the product is sold in specialty stores that serve handicapped persons.
Though Danze’s toilets meet specifications for ADA-compliant toilets, including a seat height of at least 17 inches, flush controls and ease of operation, they are also meant for use by the general public and can’t be considered “specially designed” for the purposes of the Nairobi Protocol, CIT said. “Comfort toilets,” with a height of 17 to 19 inches, have become the most popular type of toilet, CIT said. The toilets are also marketed as making sitting and standing “more comfortable for any age group,” suggesting that “the toilets were intended for the general public and not specifically for the benefit or use of handicapped persons,” it said.
And while the flushing mechanism meets ADA requirements, including requiring no more than five pounds of pressure to flush, Danze did not explain how those features “distinguish the subject merchandise from standard toilets,” CIT said.
“Danze asserts that ‘[a] toilet can be designed for ADA compliance and for general comfort without frustrating the scope of subheading 9817.00.96,’” CIT said. “However, the fact that Danze ensured its toilets comply with ADA standards, alone, is not sufficient to include its toilets within subheading 9817.00.96,” the trade court said.
(Danze, Inc. v. U.S., Slip Op. 18-69, CIT # 13-00381, dated 06/19/18, Judge Barnett)
(Attorneys: John Peterson of plaintiff Neville Peterson for plaintiff Danze, Inc.; Edward Kenny for defendant U.S. government)