OT:RR:CTF:VS HQ H327276 UBB
Harold M. Grunfeld
Grunfeld, Desiderio, Lebowitz, Silverman & Wright
599 Lexington Ave, Fl. 36
New York, NY 10022
RE: Articles for the handicapped; Subheading 9817.00.96; Reaching aids
Dear Mr. Grunfeld,
This is in reference to one ruling issued to your law firm on behalf of an unnamed client, concerning the tariff classification of various reaching aids under the Harmonized Tariff Schedule of the United States ("HTSUS"). Specifically, in New York Ruling Letter ("NY") 813853, dated September 8, 1995, 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. 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:
NY 813853 addresses various types of reachers or reaching aids used for retrieving objects beyond an individual's reach or for picking articles off the floor. The ruling describes the reacher, noting that it "basically consists of a long aluminum rod with a handle and trigger mechanism at one end and a spring operated gripping jaw at the other." The ruling also states that the reachers "appear to be designed primarily for the use of individuals whose ability to move or bend to reach needed objects is substantially and chronically impaired." The ruling contains no other information regarding the reachers or reaching aids and does not provide a detailed legal analysis regarding the applicability of 9817.00.96, HTSUS to the merchandise.
ISSUE:
Whether the reaching aids 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 or reaching aids in question 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 described in NY 813853 do not possess any features that are distinguishable from features found in reachers available to the general public. We have found reachers with identical or similar features described as useful for picking up items that are too far to reach, for picking up trash, litter and garbage, for gathering dangerous items such as shards of glass, for reaching tight or hard to reach spots, for use for the elderly, in nursing homes, and for use for the physically impaired. There is no particular distinction between reachers that are marketed to the general public (including the elderly) for ease with daily or specialized activities and reachers that are specially designed for individuals suffering from a permanent or chronic physical or mental impairment which substantially limits one or more major life activities.
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. Reachers that are substantially similar to the reachers described in NY 813853 proliferate at e-commerce websites that serve the general public and these websites market the reachers both to the general public as well as to individuals who may be handicapped. NY 813853 does not identify the importer on whose behalf the ruling was requested.
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. NY 813853 was an advance ruling request and did not address an importation that had taken place, therefore the fifth factor doesn't apply in this case.
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. NY 813853 does not define or describe the specific handicap or disability that would necessitate the use of the subject merchandise, and makes only a conclusory statement that the reachers are designed primarily for the use of individuals whose ability to move or bend to reach needed objects is substantially and chronically impaired. 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. As we have noted above, reachers and reaching aids that are substantially similar to the ones described in NY 813853 are now routinely marketed to and available for purchase by the general public for precisely this type of use.
Thus, the reachers in NY 813853 do not have any features which are "specifically designed or adapted" for the handicapped. Rather, the general public would likely use the reachers for the many uses described above. Although the importer may claim the reachers are for persons who are chronically handicapped, we do not believe the reachers have any significant adaptations that would benefit the handicapped community. While reachers and reaching aids may have been directed at chronically handicapped individuals at one point in time, they now appear to be common to members of the general public who may benefit from the convenience of using a reaching tool, to reach items that are places high and beyond reach or in tight spaces, to pick up trash and litter or dangerous items such as shards of glass, as well as by members of the general public who may have impaired mobility as a result of transient injury or advanced age, but who are not chronically handicapped as set forth in 9817.00.96, HTSUS, Sigvaris, or the Nairobi Protocol, Annex E to the Florence Agreement, found in T.D. 92-77, supra.
Accordingly, the reachers and reaching aids are not adaptive articles of subheading 9817.00.96, HTSUS.
HOLDING:
The reachers and reaching aids identified in NY 813853 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:
NY 813853, dated September 8, 1995, is hereby modified to reflect that the reachers and reaching aids 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