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HQ 556449

May 5, 1992
CLA-2 CO:R:C:S 556449 SER

CATEGORY: CLASSIFICATION

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

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See also:

• Tariff No.: 3924.10.20 - Plates, cups, saucers, soup bowls, cereal bowls, sugar bowls, creamers, gravy boats, serving dishes and platters, of plastics
• Tariff No.: 9817.00.92 - Books, music and pamphlets, in raised print, used exclusively by or for the blind
• Tariff No.: 9817.00.94 - Braille tablets, cubarithms, and special apparatus, machines, presses, and types for use by or benefit exclusively of the blind
• Tariff No.: 9817.00.96 - Other articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons