OT:RR:CTF:VS H307526 AP
Center Director
Automotive and Aerospace CEE
477 Michigan Ave., Room 281
Detroit, MI 48226
Attn.: Christopher Hughes, CBP Import Specialist
RE: Subheading 9817.00.96, HTSUS; Lift chair components
Dear Center Director:
The following is our decision regarding the secondary classification in the Application for Further Review (“AFR”) of Protest Number 4601-19-106343, timely filed on October 22, 2019, on behalf of Golden Brothers, Inc. (“protestant”). The AFR was forwarded to the Valuation and Special Programs Branch for a decision on the applicability of subheading 9817.00.96, Harmonized Tariff Schedule of the United States (“HTSUS”), to the subject lift chair components. A teleconference with counsel was held on May 20, 2020, to discuss the applicability of subheading 9817.00.96, HTSUS.
FACTS:
Golden Brothers, Inc. manufactures lift and recline chairs. Protestant states that the company represents approximately half of the U.S. lift chair market. Protestant describes the merchandise at issue as components of its lift chairs, also known as “lift recliners” and “power lift recliners.” The chair components are: scissor mechanisms (RM8300R/L), rear mounting brackets (RMB756), spacer bar assembly (RM756SM), back rest brackets (RM501JPSB), ottoman brackets (41511002PPMB-OTTOMEDF), back bar (RM512MRMB), recline bars (RB100L23), dual motor lift frame with gusset (LM6111), power head rest adjustable link (RM505HRM-L/R), powered head rest tube (RM505HRM-S), and plastic tube (MID-OTTOMAN).
The scissor mechanisms are a scissor linkage used to raise and lower the footrest and recline the chair; one on left, one on right. The rear mounting brackets are a mechanism bar for movement of the back of the chair. The spacer bar assembly and the back rest brackets are used to attach the scissor mechanisms to the chair’s seat and back assembly. The ottoman brackets are a metal safety bar used to avoid entrapment under the footrest. The back bar is a rear mounting bracket/mechanism bar for movement of the chair’s back and footrest. The recline bars attach to the chair’s motor to lift the frame for reclining. The dual motor lift frame with gusset is the chair’s lift frame. The power head rest adjustable link is used for the power headrest adjustments. The powered head rest tubes connect the chair’s left and right side headrest linkage. The plastic tubes serve as a plastic safety bar to avoid entrapment under the chair’s footrest.
The components are imported separately, not as a complete lift chair, and are assembled with other components in the United States to form the lift chair. Below are images of the chair and its parts supplied by protestant:
Protestant describes the lift chair as “designed specifically for individuals suffering from a physical impairment that makes it difficult to get into and out of a chair.” The lift chairs offer lifting options that assist an adult to move from a seated position to a standing position. The chairs include non-stick leg levers for mount/dismount stability and rear standing legs for support when the chair is used as a bed. Protestant states that the gauge springs, the calibrated motors, and the high-density foam have 375-pound weight lift and recline capacities. The chairs allow individuals to lay flat like a bed or be positioned for eating, sleeping, and recovery. The footrest raises to help the body circulate fluid from the lower body back to the upper body. The chairs are designed to prevent pressure sores.
Protestant states that the chairs are primarily sold to and by Durable Medical Suppliers (“DMS”) and other specialty medical stores, and include materials that are not interchangeable with chairs or other devices not designed for use by the physically handicapped.
The chairs are covered by several U.S. Patent and Trademark Office (“USPTO”) patents, of which the most recent one is Patent No. 10,327,553 B2, dated June 25, 2019. The chairs’ lift and recline mechanisms are covered by Medicare. The chairs are regulated by the Food and Drug Administration (“FDA”) as Class II medical devices but no prescription is needed to purchase them.
The entry subject to this Protest was filed on January 7, 2019, and was liquidated on August 30, 2019. Protestant entered the items under subheading 9402.10.00, HTSUS. U.S. Customs and Border Protection (“CBP”) liquidated the chair components covered by the entry under subheadings 9401.90.3580, HTSUSA/9903.88.03, HTSUS and 9401.90.5081, HTSUSA/9903.88.03, HTSUS. The components were subject to additional Section 301 duties for products from China.
ISSUE:
Whether the instant lift chair components are eligible for duty-free treatment under subheading 9817.00.96, HTSUS.
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C.
§ 1514(a)(1) as a decision on the value of merchandise. The protest was timely filed, within 180 days of liquidation for the entry made on January 7, 2019. See Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108-429, § 2103(2)(B)(ii)-(iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)). Further Review of this Protest is properly accorded to protestant pursuant to 19 C.F.R. § 174.24(b) because the issues protested involve questions of law or fact, which have not been ruled upon.
We next turn to the special classification. Subheading 9817.00.96, HTSUS, came into effect in the United States through a series of international agreements and acts of Congress. Its basis is in the Agreement on the Importation of Educational, Scientific and Cultural Materials, opened for signature Nov. 22, 1950, 17 U.S.T. 1835, 131 U.N.T.S. 25, or Florence Agreement, drafted by the United Nations Educational, Scientific, and Cultural Organization (“UNESCO”) in July 1950. In 1976, UNESCO adopted the Nairobi Protocol to the Florence Agreement, which expanded the scope of products to include materials specially designed for handicapped persons. See Protocol to the Agreement on the Importation of Educational, Scientific, or Cultural Materials, opened for signature 1 Mar. 1977, 1259 U.N.T.S. 3. Congress ratified the Nairobi Protocol and enacted it into U.S. law in 1983. Pub. L. 97-446, § 161, 96 Stat. 2329, 2346 (1983). Section 1121 of the Omnibus Trade and Competitiveness Act of 1988 (Pub. L. No. 100-418, 102 Stat. 1107) and Presidential Proclamation 5978 implemented the Nairobi Protocol by inserting permanent provisions such as subheading 9817.00.96 into the HTSUS.
Subheading 9817.00.96, HTSUS, provides for: “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.”
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 states that
subheading 9817.00.96 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.”
Thus, classification within subheading 9817.00.96, HTSUS, depends on whether a product is “specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons,” and whether it falls within any of the enumerated exclusions under U.S. Note 4(b), Subchapter XVII, Chapter 98, HTSUS.
At issue here is whether the components of the lift chairs are “specially designed or adapted” for use in lift chairs that are “specifically designed or adapted” for the use or benefit of handicapped persons, i.e. persons who have a permanent or chronic physical impairment, and not an acute or transient disability.
The HTSUS does not establish a clear definition of what constitutes “specially designed or adapted for the use or benefit” of handicapped persons. The Court of the International Trade (“CIT”) has stated that it might rely upon its own understanding of the terms or consult dictionaries and other reliable information. See Danze, Inc. v. United States, 319 F. Supp. 3d 1312 (CIT 2018). In Sigvaris, Inc. v. United States, 899 F.3d 1308, 1314-15 (Fed. Cir. 2018), the Court of Appeals for the Federal Circuit (“CAFC”) clarified:
.. [W]e must ask first, “for whose, if anyone’s, use and benefit is the article specially designed,” and then, “are those persons physically handicapped?” …
We conclude that, to be “specially designed,” the subject 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.” Customs considers “the physical properties of the merchandise, whether the merchandise is solely used by the handicapped, the specific design of the merchandise, the likelihood the merchandise is useful to the general public, and whether the merchandise is sold in specialty stores.”… These factors aid in assessing whether the subject merchandise is intended for the use or benefit of a specific class of persons to a greater extent than for the use or benefit of others. Accordingly, we adopt them in our analysis ….
In Sigvaris, 899 F.3d at 1315, the compression hosiery was designed for people who had “tired, achy, heavy feeling in their legs” and who were sitting for a long time. The advertising material demonstrated that the merchandise was generally designed for the use or benefit of a variety of persons, including those who lead an active lifestyle, are in professions that require sitting for long periods of time, are pregnant, or desire fashionable hosiery. The CAFC concluded that the hosiery was not specially designed for the use or benefit of a specific class of persons, and that the court did not need to assess if the persons who might use the subject merchandise were physically handicapped.
Consistent with CAFC’s holding in Sigvaris, we must first determine for whose, if anyone’s, use and benefit are the lift chairs “specially designed.” To determine the meaning of the phrase “specially designed or adapted,” CBP evaluates the following factors, which the CAFC has adopted in Sigvaris, supra: 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 Headquarters Ruling Letter (“HQ”) H304676, dated Mar. 26, 2020.
In HQ H035447, dated Dec. 7, 2011, carrying bags were not eligible for duty-free treatment under subheading 9817.00.96, HTSUS, because they were not limited to specialty stores solely serving handicapped individuals; were not imported by manufacturers/distributors recognized to be involved in the same kind of articles for the handicapped; were not described as articles for the handicapped at the time of importation; and were not described and/or marketed as a product for the handicapped.
In HQ H255447, dated June 29, 2015, handheld shower systems were also not eligible for duty-free treatment under subheading 9817.00.96, HTSUS, because they were sold in standard hardware stores frequented by the general public and their physical properties did not distinguish them from handheld shower systems useful to non-handicapped people.
Protestant claims that the lift chairs are Class II medical devices which are sold primarily to DME dealers and other medical specialty stores, and the lift mechanism is covered by Medicare. Protestant states that the chairs are specialty items designed specifically for those with physical impairments that substantially limit a major life activity. Protestant also states that the parts are designed solely and specifically for use in the company’s lift chairs and cannot, without modification, be used elsewhere.
The subject lift chairs are designed for the use and benefit of a variety of persons, including elderly people who find it difficult to stand up and those with a transient disability. A lift chair is similar to a reclining chair. However, unlike a reclining chair, it has a powerful lifting system and operates by pushing buttons on a remote control. Lift chairs are marketed to individuals who are looking for the “ultimate in relaxation” to “ease the body and mind” as well as those who have difficulty transitioning from a seating position to a standing position as a result of limited mobility or balance issues. The heat and massage features provide therapeutic benefits to those with stiff and sore joints, back pain, and arthritis. Individuals who have had surgery also benefit from a lift chair. Similarly looking lift chairs sold at Walmart, are marketed as “ideal for nurse, elder, lounger and the person who are recovering from illness.”
Golden Technologies’ lift chairs are sold at www.amazon.com and are described as “Ultra soft seam back pillow featuring plush seat and arms * Recline positions: 3 * Weight Capacity: 375 lbs * Medium: overall width: 34 overall height: 44 seat depth: 22 *.” There is no indication in the product description that the lift chairs are specially designed for the use or benefit of a specific class of persons. Golden Technologies’ lift chairs sold at libertymedic.com are marketed “for correct spinal alignment, back pressure relief and improved circulation” A user of the Monarch PR 355 Golden Technologies’ lift chair in her 70s commented that it was easier for her to get up from this chair than from a regular chair and she had more energy to walk as a result. As protestant points out, the images on Golden Technologies’ website market the chairs to outwardly able people. The Monarch Medium Recliner PR 355M lift chair is marketed as a “three-way recline system [that] allows … to get into [a] ‘full napper’ position for deep comfort. Combining ample room to relax and a tasteful design, the Monarch recliner will be a welcome addition to your home.”
Just like the products in HQ H035447 and HQ H255447, the instant lift chairs are not marketed to the handicapped and are not exclusively sold in specialty stores, and are used by a variety of individuals for comfort and relaxation. In addition, as we noted above, the lift chairs have a similar design as recliner chairs and are sold by distributors, such as Amazon and Walmart, who are not DMS or other specialty medical stores.
The lift chairs are not automatically covered by Medicare B. The piece of equipment that is covered by Medicare B “is the motor and contraption that helps ‘lift’ you out of the seat.” However, Medicare coverage depends on whether the lift chair is medically necessary, meaning “it must be absolutely necessary to treat [a] condition (being able to get up to a standing position from a chair due to arthritis or some immobilizing neuromuscular disease).”
Although the lift chairs are designated as class II medical device by the FDA, CBP has previously noted that “articles are classified by the FDA to protect public safety, not as guidance for classification of imported merchandise.” HQ H265244, dated June 1, 2015 (quoting Amersham Corp. v. United States, 5 CIT 49, 56, 564 F. Supp. 813, 817 (1983), which states that “… statutes, regulations and administrative interpretations relating to ‘other than tariff purposes’ are not determinative of customs classification disputes.”).
Thus, the instant lift chair is not specially designed for the use or benefit of a specific class of persons and as such it is not eligible for duty-free treatment under subheading 9817.00.96, HTSUS. We need not assess, therefore, if the persons who might use the subject merchandise are physically handicapped persons. See Sigvaris.
Since the lift chair does not qualify for duty-free treatment under the Nairobi Protocol, the subject lift chairs components equally do not qualify because they are not specially designed or adapted for use in a qualifying article. See HQ H301481, dated June 14, 2019.
HOLDING:
Based upon the information submitted, the subject lift chair components are not eligible for duty-free treatment under subheading 9817.00.96, HTSUS. Accordingly, you should DENY this Protest with respect to the special classification under
subheading 9817.00.96, HTSUS.
In accordance with the Protest/Petition Processing Handbook (CIS HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant, through its counsel, no later than 60 days from the date of this letter. Any reliquidation of the entries in accordance with this decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision, Regulations and Rulings, Office of Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
for Craig T. Clark, Director
Commercial and Trade Facilitation Division