CLA-2 CO:R:C:S 556449 SER
Area Director of Customs
New York Seaport
Room 423
6 World Trade Center
New York, NY 10048
RE: Protest and Application for Further Review No. 1001-91-
001636; Nairobi Protocol; specially designed or adapted for
the handicapped
Dear Sir:
The above-referenced protest concerns your classification
and duty assessment on various household articles imported from
Sweden by Lumex Inc. Protestant claims that the articles at
issue are eligible for duty-free treatment under subheading
9817.00.96, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA), a claim which you have denied.
FACTS:
The following is a brief description of each of the numerous
articles which are subject to this protest:
1. A clear plastic two-handled mug which has a relatively wide
base which is stated to provide a low center of gravity to
prevent tipping. This mug also generally comes with a lid which
has a small funnel which prevents spillage when liquids from the
mug are consumed. In a pre-import review, Customs officials
obtained samples of this mug. The marking on the packaging of
the mug and lid as imported were in Swedish and stated that the
product was for use by children. After importation, the articles
are repackaged to indicate that they are for use by handicapped
individuals. Customs classified the mugs and lids in subheading
3924.10.20, HTSUSA.
2. A plate made of heat-proof plastic with an anti-slip base.
The plate has a raised edge which is stated to allow "low entry
and provides a lip to push food against."
3. A potato peeler with either a suction-cupped base or a
screw-type counter clamp. By attaching the peeler to a
countertop, an individual is able to peel vegetables with only
one hand by passing the vegetable over the peeler.n-2-
4. A nail brush with a suction cup to secure the brush to a
surface for one-handed operation.
5. A nail file which is stated to feature a lightweight,
plastic handle for cleaning cuticles and under the nails.
6. A pen stated to be designed for those with diminished
strength and/or mobility in hands and arms. The pens are wider
than the traditional ball-point pens and have a groove to form to
the hand.
7. Kitchen knives with various edges, e.g., serrated, with the
principle design consisting of a handle grip which is above the
blade portion. It is stated that this design allows less strain
on shoulders and hands when cutting.
8. An angled container opener which is used to open milk and
juice containers. One edge is used to release the container
folds, and another edge is used to pull the container open so
that the juice or milk may be poured. The accompanying catalog
stated that the container opener is specially designed "for
people with impaired hand usage; but anyone will find opening a
container much easier with this efficient product."
9. Various forms of forks, spoons, and knives all of which are
stated to have a design function to benefit the handicapped. One
form is stated to be maneuverable and lightweight with "proper"
handle angles for distribution of pressure when holding the
cutlery like a pen. Another form of cutlery is combination
fork/knives or spoon/knives whereby the fork or spoon also have
an extended "blade" on one side. They are stated to be ideal for
one-handed usage. Another form is weighted style cutlery with
built-up handles which are stated to provide proper balance for
users with limited grip strength. In addition, the heads of the
spoons and forks are bent where the heads meet the handle to
provide easier usage. Another style is labeled as "RA" cutlery
which is stated to be designed for individuals with rheumatoid
arthritis. One final form of cutlery is lightweight style
cutlery, which includes heads bent at 45 degree and 90 degree
angles.
10. Scissors with a nylon spring connecting the handles so that
the handles open after cutting. This is stated to be for those
individuals who have difficulty pulling scissor blades apart
after every cut.
11. Brushes with extenders made of nylon with PVC handles used
for bathing. The extenders allow persons to cleanse themselves
without bending or stretching.
12. A plastic mixing bowl equipped with handles on the side and
an anti-slip base.n -3-
13. Reachers and turners of 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. They are
stated 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.
14. Toilet support arms of various styles which are used by
handicapped individuals who need assistance in accessing a
toilet. The support arms are attached to the wall next to a
toilet and can either be raised or can swivel out of the way for
egress and ingress, depending on the style used.
15. A "Kommod" bedside toilet which is intended to be placed at
bedside for those who would otherwise have difficulty in getting
to the toilet. It is supplied with a "pot" and tight-sealing
lid. The pot is easily removed for emptying. It also has arm
rests which can be raised to facilitate transfer from bed to
toilet.
16. Toilet seat raisers which provide a higher seat level on
toilets so that a handicapped individual does not need to bend as
low to utilize the toilet. It attaches to an existing regular
toilet seat and the angle of the seat can be adjusted. The
toilet seat raisers are designed for individuals with diminished
mobility in hips and knees.
17. Shower stools which are utilized by those individuals who
cannot stand in the shower. They are offered in varying styles
and sizes.
18. A Strumpalatt or stocking aid which is used by handicapped
individuals who have difficulty in putting on stockings or socks
because of limited mobility in hips and/or knee joints, or
impaired stability, or by those individuals with diminished use
of arms and hands and persons with only one hand. The stocking
aids consist of a plastic board approximately the width of a
human foot with a handle at one end. The lower portion of the
plastic piece has a fabric cone which is used to guide the foot
into the stocking.
19. Grab rails which are mounted to walls in and around showers
and bath tubs. They are utilized for stabilization when entering
or leaving the showers or bath tubs. The individual rails vary
in size and composition--some are chrome-plated brass while
others are Rilsan-coated steel.n-4-
ISSUE:
Whether the various articles are "specially designed or
adapted" for the handicapped within the meaning of the Nairobi
Protocol, and, therefore, eligible for duty-free treatment under
subheading 9817.00.96, HTSUSA.
LAW AND ANALYSIS:
The Nairobi Protocol to the Agreement on the Importation of
Educational, Scientific, and Cultural Materials Act of 1982,
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, HTSUSA. These tariff
provisions specifically state that "[a]rticles specially designed
or adapted for the use or benefit of the blind or other
physically or mentally handicapped persons" are eligible for
duty-free treatment.
U.S. Note 4(a), subchapter XVII, Chapter 98, HTSUSA, 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, HTSUSA, which
establishes limits on classification of products in these
subheadings, states as follows:
(b) Subheadings 9817.00.92, 9817.00.94 and 9817.00.96
do not cover--
(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.
The primary issue regarding the articles subject to this
protest is whether they are "specially designed or adapted" for
the use or benefit of the handicapped within the meaning of
Nairobi Protocol. Although the legislative history of the
Nairobi Protocol discusses the concerns of Congress that the
design, modification or adaption of an article must ben-5-
significant so as to clearly render the article for use by
handicapped individuals, no specific definition of these terms
was established by Congress. See, Senate Report (Finance
Committee) No. 97-564, September 21, 1982). See also,
Headquarters Ruling Letter (HRL) 951004 dated March 3, 1992.
Since it is difficult to establish a clear definition of what is
"specially designed or adapted," various factors must be utilized
on a case-by-case basis to determine whether a given article is
"specially designed or adapted" within the meaning of this
statute.
The first factor to be considered is the physical properties
of the article itself, i.e., whether the article is easily
distinguishable by properties of the design and the corresponding
use specific to this unique design, from articles useful to non-
handicapped individuals. If an article is dedicated to a sole
use for the handicapped, e.g., pacemakers or hearing aids, then
this is conclusive evidence that the articles are specially
designed or adapted for the handicapped for purposes of the
Nairobi Protocol. Also, design factors such as the utilization
of angles in articles normally of straight design, as is found in
some of the cutlery at issue, is a common design associated with
articles for the handicapped. The physics of leverage provided
by this design enables handicapped individuals to compensate for
weakness and lack of dexterity. However, not all articles which
have a bend in their design are to be considered articles
specially designed or adapted for the handicapped. The bathing
brushes at issue which have a bend would be considered to be a
common design often used by the general public. Thus, the
"specific design" factors must be considered in conjunction with
other relevant factors which are discussed below.
In Headquarters Ruling Letter (HRL) 074191 dated December
13, 1984, we also found the following factors relevant to the
question of whether or not an article is specifically designed or
adapted for the use or benefit of the handicapped: Whether any
characteristics are present that create a substantial probability
of use by the chronically handicapped, and whether the article is
easily distinguishable from articles useful to the general public
or whether use of the article by the general public is so
improbable that such use would be fugitive. These factors will
be collectively referred to hereafter as the "probability of
general public use" factor.
In consideration of the "probability of general public use"
factor we find, for example, that the submitted sample of the
two-handed mug is very commonly used by children. In addition,
the design, a low center of gravity and a corresponding top which
helps to reduce spillage, is very common in traveling mugs used
by the general public. Accordingly, duty-free treatment as
articles specially designed for the handicapped is precluded.
Similarly, the pen and nail files at issue with their widern-6-
design and lightweight properties are also very common in the
general public. On the other hand, the likelihood of the general
public utilizing the bedside toilet, or the dressing aids at
issue is remote. Thus, there is a strong indication that these
articles are specially designed or adapted for the handicapped.
The "probability of general public use" factor also includes
an evaluation of convenience. For example, the use of the fork
with a clamp, whereby individuals place food needed to be cut on
the end of the fork and then clamp the fork to the side of a
plate for one-handed cutting, would be very inconvenient for non-
handicapped individuals. Furthermore, the potato peelers, which
are either mounted on a platform with suction cups or to a clamp
to assist in one handed peeling, also would not be very
convenient to the general public, thereby supporting the
conclusion that this article is specially designed or adapted for
the handicapped.
Customs also has considered other factors for determining
whether an article is "specially designed or adapted" for the
handicapped: Whether articles are imported by manufacturers or
distributors recognized or proven to be involved in this class or
kind of articles for the handicapped; Whether the articles are
sold in specialty stores which serve handicapped individuals; and
Whether the condition of the articles at the time of importation
indicate that these articles are for the handicapped. Each of
these factors still must be weighed against other factors
discussed herein. See, Headquarters Ruling Letter (HRL) 556135
dated September 10, 1991 and HRL 087625 dated November 1, 1990.
Therefore, although Protestant and its supplier are
recognized as distributors of articles for the handicapped, a
finding of this factor, alone, is not dispositive. For example,
the mug and top which are imported by the Protestant are clearly
not articles specially designed or adapted for the use or benefit
of the handicapped. In their condition as imported they are
packaged and labeled, in Swedish and Norwegian, as a "childs
mug", which coincides with a cartoon figure of a young girl also
on the label. Furthermore, the plastic mixing bowl at issue
which is claimed to be for the handicapped, is clearly not the
type of article to be associated with a specialty store, nor does
it have any real design characteristics which would distinguish
it as an article specially designed for the handicapped.
HOLDING:
Based on the application of the factors stated herein, we
find as follows.
The clear plastic two-handed mug and lid, the nail file with
the lightweight handle, the pens with a wider base, the angled
container opener, the cutlery which does not incorporate an-7-
bending design of the heads, the scissors with springs for
opening, the brushes with extenders for bathing, and the plastic
mixing bowl are not articles specially designed or adapted for
the handicapped, and, therefore, are not eligible for duty-free
treatment under subheading 9817.00.96, HTSUSA.
However, the "Kommod" bedside toilet, the plate with a
raised edge, the potato peelers and nail brush with suction cups
or clamps, the kitchen knives with a design which includes a
bend, the cutlery with bending designs, the reachers and turners,
the toilet support arms, the toiler seat raisers, the grab rails,
the shower stools, and the "Strumpalatt" used for dressing are
considered to be articles specially designed or adapted for the
handicapped, and, therefore, eligible for duty-free treatment
under subheading 9817.00.96, HTSUSA.
Therefore, in accordance with this decision, you should
grant in part and deny in part, this protest. A copy of this
ruling should be attached to Customs Form 19 and sent to the
protestant.
Sincerely,
John Durant, Director
Commercial Rulings Division
cc: Regional Commissioner of Customs
c/o Protest and Control Section
Room 762
6 World Trade Center
New York, NY 10048-0945