OT:RR:CTF:VS HQ H330680 UBB
Kenneth Spett, President and CEO
Graham-Field Health Products
One Graham-Field Way
Atlanta, GA 30340-3140
RE: Articles for the handicapped; Subheading 9817.00.96; Reaching aids
Dear Mr. Spett,
This is in reference to one Protest and Application for Further Review that concerned certain merchandise imported by Lumex, Inc. The ruling concerned the tariff classification of, among other items, various reaching aids under the Harmonized Tariff Schedule of the United States ("HTSUS"). Specifically, in Headquarters Ruling Letter ("HQ") 556449, dated May 5, 1992, the merchandise was determined to be eligible for subheading 9817.00.96, HTSUS treatment as an article for the handicapped.
We have reviewed the ruling and find it to be in error regarding the applicability of subheading 9817.00.96, HTSUS to the reaching aids. For the reasons set forth below, we are modifying the ruling which approved the applicability of heading 9817, which provides for "articles for the handicapped" to various reaching aids.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed action was published on September 6, 2023, in Volume 57, Number 32, of the Customs Bulletin. No comments were received in response to this notice.
FACTS:
In HQ 556449, Lumex, Inc. ("Lumex" or "Protestant") [1] claimed that a number of articles imported from Sweden were eligible for duty-free treatment under subheading 9817.00.96, HTSUS. Among the articles subject to the protest were reachers and turners of various designs for use in retrieving objects beyond an individual's reach or for picking up items off the floor. The ruling describes the items as having a handle on one end with control mechanisms and "jaws" to grip items on the other end. According to the ruling, the protestant stated the reachers to be for safety purposes so individuals with limited mobility do not attempt to stand on chairs to reach items or for those who find it painful to bend down to the floor to retrieve items. The ruling set forth the factors relevant to whether an article is specifically designed or adapted for the use or benefit of the handicapped, however the ruling did not analyze the facts of the specific merchandise (reachers and turners) against those factors, with the exception of noting that although the Protestant and its supplier were recognized as distributors of articles for the handicapped, this factor alone was not dispositive. The ruling then provided, without additional analysis, that the reachers and turners were considered to be articles specifically designed or adapted for the handicapped.
ISSUE:
Whether the reachers and turners are eligible for duty-free treatment under subheading 9817.00.96, HTSUS, as "articles specially designed or adapted for the handicapped."
LAW AND ANALYSIS:
The Nairobi Protocol to the Agreement on the Importation of Educational, Scientific and Cultural Materials of 1982, Pub. L. No. 97-446, 96 Stat. 2329, 2346 (1983) 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.
Subheading 9817.00.96, HTSUS, 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." In Sigvaris, Inc. v. United States, 227 F. Supp 3d 1327, 1336 (CIT 2017), aff'd, 899 F.3d 1308 (Fed. Cir. 2018), the U.S. Court of International Trade ("CIT") explained that:
The term "specially" is synonymous with "particularly," which is defined as "to an extent greater than in other cases or towards others." Webster's Third New International Dictionary 1647, 2186 (unabr. 2002). The dictionary definition for "designed" is something that is "done, performed, or made with purpose and intent often despite an appearance of being accidental, spontaneous, or natural." Webster's Third New International Dictionary 612 (unabr. 2002).
Subheading 9817.00.96, HTSUS, excludes "(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." U.S. Note 4(b), Subchapter XVII, Chapter 98, HTSUS. Thus, eligibility within subheading 9817.00.96, HTSUS, depends on whether the article is "specially designed or adapted for the use or benefit of the blind or physically and mentally handicapped persons," and whether it falls within any of the enumerated exclusions under U.S. Note 4(b), Subchapter XVII, Chapter 98, HTSUS.
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(a), Subchapter XVII, Chapter 98, HTSUS. While the HTSUS does not establish a clear definition of substantial limitation, in Sigvaris, 227 F. Supp 3d at 1335, the CIT explained that "[t]he inclusion of the word 'substantially' denotes that the limitation must be 'considerable in amount' or 'to a large degree.'"
We must first evaluate "for whose, if anyone's, use and benefit is the article specially designed," and then, whether "those persons [are] physically handicapped []." Sigvaris, 899 F.3d at 1314. In other words, we must consider whether such persons are suffering from a permanent or chronic physical or mental impairment which substantially limits one or more major life activities.
The Court of Appeals for the Federal Circuit ("CAFC") clarified that to be "specially designed," the merchandise "must be intended for the use or benefit of a specific class of persons to an extent greater than for the use or benefit of others. This definition of 'specially designed' is consistent with factors that Customs uses in discerning for whose use and benefit a product is 'specially designed" ... we adopt them in our analysis ...." Id. at 1314-15. In Danze, Inc. v. United States, 319 F. Supp. 3d 1312, 1326 n.22 (CIT 2018), the CIT held that ADA compliance alone was insufficient to show that an item was "specifically designed or adapted" for the handicapped under subheading 9817.00.96, HTSUS.
Thus, to determine whether the reachers and turners are "specially designed" for the use or benefit of a class of persons to an extent greater than for others, we must examine the following five factors used by U.S. Customs and Border Protection ("CBP") and adopted by the CAFC in Sigvaris, 899 F.3d at 1314-15: (1) physical properties of the article itself (e.g., whether the article is easily distinguishable in design, form and use from articles useful to non-handicapped persons); (2) presence of any characteristics 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) importation by manufacturers or distributors recognized or proven to be involved in this class or kind of articles for the handicapped; (4) sale in specialty stores that serve handicapped individuals; and (5) indication at the time of importation that the article is for the handicapped. See also T.D. 92-77 (26 Cust. B. 240 (1992)).
The first two factors to consider in determining whether an article is "specially designed," are the physical properties of the article and any characteristics of the article that easily distinguish it from articles useful to the general public. In this case, the reachers and turners in HQ 556449 were described as "various designs for use in retrieving objects beyond an individual's reach or for picking up items off the floor. On one end is a handle with control mechanisms, and on the other are "jaws" to grip items." The ruling did not examine the probability that these items would be of particular use to handicapped persons or whether they were easily distinguishable in design, form and use from articles useful to non-handicapped persons. In fact, the ruling describes the articles as useful for "individuals with limited mobility" and "for those who find it painful to bend down to the floor." We note that neither limited mobility nor pain in bending down is necessarily an indication of handicap and could be caused by issues that are more transient, such as injury or recovery from surgery or a medical procedure. While the ruling concluded without additional analysis that the reachers and turners were specially designed for use by the chronically handicapped, we disagree. We have found various e-Commerce websites that advertising substantially similar reachers and turners to the general public, for use with reaching items that are too high or in narrow spaces, for picking up litter or hazardous materials such as broken glass, reaching into the washer for socks or for picking up small items. The design of these reachers marketed to the general public appears to be indistinguishable from that of the reachers and turners described in HQ 556449. The reachers and turners in HQ 556449 were claimed to be for use for individuals with limited mobility, but the ruling did not address the likelihood that the merchandise was useful to the general public. We do not agree that the reachers and turners as described in HQ 556449 have characteristics that create a substantial probability that they will be used by the chronically handicapped and that any use by the general public would be fugitive. On the contrary, similar reachers and turners appear to be marketed towards persons suffering from various limitations to their mobility, ranging from transient limitations resulting from surgery, limitations due to arthritis (which may or may not rise to the level of a chronic handicap), age, and disability.
The third and fourth factors to consider in determining whether an article is "specially designed" are whether it is imported by manufacturers or distributors recognized to be involved in this class or kind of articles for the handicapped and whether it is sold in specialty stores that serve handicapped individuals. The protestant and their supplier in HQ 556449 were recognized distributors of articles for the handicapped. However, this factor alone is not dispositive. Reachers that are substantially similar to the reachers and turners described in HQ 556449 proliferate at e-commerce websites that serve the general public and these websites market the reachers both to a general public as well as to individuals who may be handicapped. Substantially similar reachers and turners are also sold at hardware stores. Thus, it appears that reachers and turners are sold both in specialty and general stores, and on general e-Commerce websites, as well as by specialized purveyors such as Graham Field/Lumex.
The fifth and final factor to consider is whether there was an indication at the time of importation that the article is for the handicapped, HQ 556449 was issued in response to an AFR. However, the ruling did not address the condition as imported of the reachers and turners.
Taken together, the five factors adopted by the CAFC and CBP weigh against a determination that the reachers and turners are specially designed for the use or benefit of disabled persons.
Finally, subheading 9817.00.96, HTSUS, does not cover articles for acute or transient disability. See U.S. Note 4(b), Subchapter XVII, Chapter 98, HTSUS. The protestant in HQ 559446 never defines or describes the specific handicap or disability that would necessitate the use of the subject merchandise. Instead, protestant states that the products are to be used by those with limited mobility or those who find it painful to bend down to the floor to retrieve items. There is no doubt that there are chronic handicap or disabilities that would result in dexterity or mobility issues of this type, however, there are also transient or acute conditions that would do the same (e.g. surgery, an accident), as well as age related limitations in mobility and dexterity as well.
Based upon the nature of the reachers and turners, we believe it is unlikely that the reachers/turners would likely be sold exclusively to the handicapped, as opposed to the general public or to individuals with a transient or acute condition that does not rise to the level of a chronic disability. It is possible that at the time that HQ 556449 was issued, the reachers and turners were marketed, sold to and used by handicapped individuals and those with chronic disability, and that in the intervening period the articles have become popular and useful for transient conditions and for the general public.[2] Accordingly, these articles are not adaptive articles of subheading 9817.00.96, HTSUS.
HOLDING:
The reachers and turners identified in the aforementioned ruling letter are ineligible for subheading 9817.00.96, HTSUS, which provides for as "articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons . . . other."
EFFECT ON OTHER RULINGS:
HQ 556449, dated May 5, 1992, is hereby modified to reflect that the reachers and turners identified therein are ineligible for subheading 9817.00.96, HTSUS.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Yuliya A. Gulis, Director
Commercial Trade and Facilitation
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[1] HQ 556449, dated May 5, 1992, was a response to a Protest and Application for Further Review (AFR) concerning various household articles imported from Sweden by Lumex, Inc. ("Lumex"). It does not appear that Lumex was represented by counsel in that matter. Internet research shows that Lumex is now a part of Graham-Field Health Products, Inc., a manufacturer of medical products in the healthcare industry. See https://grahamfield.com/about/company-information/. As such, this letter is directed to the corporate entity that appears to be the legal successor of Lumex.
[2] We note that our assessment of use for transient or acute disability and use by the general public is based upon current information. We may revisit our decision as circumstances change.