OT:RR:CTF:VS H323215 AP
Mr. Jan van Eijsden
Customs Advisor
VECC BV
Fresiastraat 11
3202 RA Spijkenisse, Zuid-Holland
Netherlands
RE: Subheading 9817.00.96, HTSUS; “SmartBrake” and “SmartSteer”
Dear Mr. van Eijsden:
This is in response to your December 13, 2021 ruling request, filed on behalf of Bever Mobility Products, Inc. (the “importer”), regarding the applicability of subheading 9817.00.96, Harmonized Tariff Schedule of the United States (“HTSUS”), to an electronic braking system for the handicapped known as the “SmartBrake” and an ergonomically designed multifunction spinner for disabled persons known as the “SmartSteer.”
FACTS:
Bever Mobility Products, Inc. is a U.S. importer and distributor of steering systems, gas and brake systems, and secondary controls for motor vehicles manufactured by Bever Car Products, a manufacturing company in the Netherlands. It will be importing the “SmartBrake” and the “SmartSteer” into the United States.
The “SmartBrake” is an electronic braking system designed for tetraplegic and quadriplegic drivers who cannot use their lower extremities to push the regular brake pedal of a motor vehicle. The “SmartBrake” is affixed to the existing brake system of the vehicle, which remains unaltered and operable by non-handicapped persons. The “SmartBrake” allows users to operate the brakes by hand controls using very little force. The “Smartbrake” becomes active when the ignition is switched on. The electronic signals from an input device control the actuator mounted directly on the brake pedal. When the “Smartbrake” is switched off, the electronic braking system enters into a sleep mode and the brake actuator no longer responds to the input device.
The “SmartSteer” is an ergonomically designed multifunction spinner knob for disabled persons designed to be installed on the steering wheel of a vehicle. It makes it possible for disabled persons to operate vehicle functions such as windscreen wipers and washer, turn signals, and high and low beams with minimal effort while at the same time keeping control of the steering wheel. A joystick-like steering knob allows users to control the motor vehicle by one hand. The “SmartSteer” is suitable for left-handed and right-handed drivers. When a non-handicapped person drives the vehicle and the “SmartSteer” is no longer needed, it is easily removed by pressing a quick-release button.
ISSUE:
Whether the “SmartBrake” and the “SmartSteer” are eligible for duty-free treatment under subheading 9817.00.96, HTSUS.
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 “specially” means “to an extent greater than in other cases or towards others” and “designed” means something that is “done, performed, or made with purpose and intent often despite an appearance of being accidental, spontaneous, or natural.”
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. In sum, eligibility within subheading 9817.00.96 depends on whether an 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 [are the “SmartBrake” and the “SmartSteer”] specially designed,” and then, whether “those persons [are] physically handicapped [].” Sigvaris, 899 F.3d at 1314. The Court of Appeals for the Federal Circuit (“CAFC”) clarified in Sigvaris, 899 F.3d at 1314-15 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” and adopted the five factors used by U.S. Customs and Border Protection (“CBP”): (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.
In New York Ruling Letter (“NY”) N104809, dated June 2, 2010, CBP considered whether driving hand control devices were eligible for treatment under subheading 9817.00.96, HTSUS. The hand-controlled braking devices allowed disabled individuals who could not use their extremities to operate the brakes of their motor vehicle by hand. Subheading 9817.00.96 was appropriate. The ruling stated, “[I]t is clear that only those individuals who did not have the use of a given part of the body would utilize these items. Due to the expense and difficulty of purchase and installation and the necessity for training/practice in their use, [the driving hand control devices] would be very unlikely to be purchased and used by someone with a temporary or acute disability, as opposed to one that is permanent or chronic. We consider driving an automobile to be a “major life activity” for the purposes of U.S. Note 4[(a)] to Subpart 17 to HTSUS Chapter 98.”
In analyzing the five factors adopted by the CAFC in Sigvaris, we note that the “SmartBrake” is designed for tetraplegic and quadriplegic drivers who cannot use their lower extremities to push the regular brake of a motor vehicle. The “SmartSteer” has a multifunction joystick-like steering knob, which allows handicapped individuals to control a motor vehicle by one hand. As in NY N104809, it is unlikely that the general public or persons with temporary disabilities would invest into the “SmartBrake” and “SmartSteer” due to the additional expense, necessary installation, and additional training/practice in the use of these systems. The original braking system and steering wheel remain unaltered and when a non-handicapped person drives the motor vehicle, the “SmartBrake” is turned off and the “SmartSteer” is removed. The “SmartBrake” is marketed as a “primary control for quadriplegic” and as a “hand control for tetraplegic.” The “SmartSteer” is marketed as a “disabled driving steering aid for all vehicle types” and as a “steering wheel device for disabled.” Thus, the five factors adopted by the CIT and CBP weigh in favor of a determination that the “SmartBrake” and “SmartSteer” are “specially designed” for the use or benefit of disabled persons with inability to use all four limbs to an extent greater than for the general public.
Next, we conclude that tetraplegic and quadriplegic persons are physically handicapped. Paralyzed persons who are unable to voluntarily move upper and lower parts of their body have a permanent or chronic physical impairment, which substantially limits major life activities such as walking, driving an automobile, and performing other manual tasks. See U.S. Note 4(a), Subchapter XVII, Chapter 98; Sigvaris, 227 F. Supp 3d at 1335; NY N104809.
Accordingly, the “SmartBrake” and “SmartSteer” are “specially designed” for “the use or benefit of … physically … handicapped persons” and are eligible for duty-free treatment under subheading 9817.00.96, HTSUS.
HOLDING:
Based on the information presented, the “SmartBrake” and the “SmartSteer” are both eligible for duty-free treatment under subheading 9817.00.96, HTSUS.
Please note that 19 C.F.R. § 177.9(b)(1) provides that “[e]ach ruling letter is issued on the assumption that all of the information furnished in connection with the ruling request and incorporated in the ruling letter, either directly, by reference, or by implication, is accurate and complete in every material respect. The application of a ruling letter by [CBP] field office to the transaction to which it is purported to relate is subject to the verification of the facts incorporated in the ruling letter, a comparison of the transaction described therein to the actual transaction, and the satisfaction of any conditions on which the ruling was based.”
A copy of this ruling letter should be attached to the entry documents filed at the time the “SmartBrake” and the “SmartSteer” are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Monika R. Brenner, Chief
Valuation and Special Programs Branch