H312742

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H312742 December 10, 2020 OT:RR:CTF:VS H312742 CMR CATEGORY: Classification C.J. Erikson, Esq. Cowan, Liebowitz & Latman, P.C. 114 West 47th Street New York, NY 10036 RE: Applicability of Subheading 9817.00.96, HTSUS to E-Z Out Bed; Nairobi Protocol; Articles for the Handicapped Dear Mr. Erikson: This is in response to your request, dated February 18, 2020, on behalf of your client, Lifestyle Comfort, LLC, regarding the applicability of subheading 9817.00.96, Harmonized Tariff Schedule of the United States (HTSUS), to the E-Z Out Bed. You describe the product as a combination bed/chair designed for use by the handicapped. A teleconference was held on October 22, 2020, with counsel to discuss this matter. We have taken into consideration that discussion and the information submitted by counsel to this office in a supplemental submission, dated November 18, 2020, in reaching our decision. FACTS: You describe the E-Z Out Bed, in its condition as imported into the United States, as a metal frame with a fabric cover. The metal frame measures 80" (L) x 38" (W) x 12" (H) and is designed to function alternatively as a bed or a chair by means of a wired remote control. The heavy duty metal frame is constructed of steel with rounded permanent guardrails which function to prevent the user from falling out of bed and assist the user in exiting the chair. After importation and prior to sale, a mattress is added to the frame. With regard to the imported product, you state: In its horizontal position the frame serves as a single person bed. It is electronically operated through a wired remote to incline at the rear and decline at the base placing the prone user into a sitting position. The chair is then remotely operated to tilt forward assisting the user in exiting the chair. Total operating time takes between 3-34 seconds from flat to fully tilted. You submit that the imported product is “specially designed, built, marketed and sold for use exclusively by handicapped persons.” You state that the unique features of this product are “solely designed for the use and comfort of permanently or chronically disabled individuals.” You further submit that individuals suffering from acute injuries would not purchase this product as “it is constructed and designed for long term use with features geared solely for ease of use by the handicapped.” With regard to the marketing of this product, you indicate that it is sold through Durable Medical Equipment (“DME”) and Home Medical Equipment (“HME”) stores and dealers. In addition, you state that it is marketed at hospice and long term care trade shows for customers within the home health care industry. ISSUE: Whether the E-Z Out Bed, as imported, is eligible for duty-free treatment under subheading 9817.00.96, HTSUS, as an article specially designed or adapted for the handicapped. LAW AND ANALYSIS: 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. 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.” U.S. Note 4(b), Subchapter XVII, Chapter 98, HTSUS. Accordingly, eligibility within subheading 9817.00.96, HTSUS, depends on whether the article in question 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. See subheading 9817.00.96, HTSUS; U.S. Note 4(b), Subchapter XVII, Chapter 98, HTSUS. Note 4(a) to Chapter 98, HTSUS, provides: (a) For purposes of subheadings 9817.00.92, 9817.00.94 and 9817.00.96, 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. This list of exemplar activities indicates that the term “handicapped persons” is to be liberally construed so as to encompass a wide range of conditions, provided the condition substantially interferes with a person’s ability to perform an essential daily task. While the HTSUS and subchapter notes do not provide a proper definition of “substantial” limitation, the inclusion of the word “substantially” denotes that the limitation must be “considerable in amount” or “to a large degree.” In the Court of Appeals for the Federal Circuit’s decision in Sigvaris, Inc. v. United States, 899 F.3d 1308 (Fed. Cir. 2018), the court found that the Court of International Trade reached the correct conclusion in finding the merchandise at issue therein, compression stockings, not eligible for subheading 9817.00.96, HTSUS, but the court disagreed with the lower court’s analysis. The court found that the Court of International Trade looked to the condition or disorder and whether it is a handicap. The court stated: The plain language of the heading focuses the inquiry on the “persons” for whose use and benefit the articles are “specially designed,” and not on any disorder that may incidentally afflict persons who use the subject merchandise. * * * . . . we must ask first, “for whose, if anyone’s, use and benefit is the article specially designed,” and then, “are those persons physically handicapped?” Id. The language of subheading 9817.00.96, HTSUS, states that the provision provides for “articles specially designed or adapted” for the use or benefit of the physically handicapped. The design and construction of an article may be indicative of whether it is specially designed or adapted for the use or benefit of the handicapped. The HTSUS does not establish a clear definition of what constitutes “specially designed or adapted for the use or benefit” of handicapped persons. In the absence of a clear definition, the Court of the International Trade stated that it may rely upon its own understanding of the terms or consult dictionaries and other reliable information. See Danze, Inc. v. United States, Slip Op. 18-69 (Ct. Int’l Trade 2018). Moreover, in analyzing this same provision in Sigvaris v. United States, the Court of International Trade construed these operative words as follows: The term “specially” is synonymous with “particularly,” which is defined as “to an extent greater than in other cases or towards others.” [Webster’s] at 1647, 2186 . . . 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] at 612 . . . . See Sigvaris, 227 F. Supp. 3d 1327 at 1336, Slip-Op 2017-60 (Ct. Int’l Trade 2017). See also, Sigvaris, Inc. v. United States, 899 F.3d 1308 (Fed. Cir. 2018), wherein the court cited the definitions relied upon by the Court of International Trade in Sigvaris, in concluding that “articles specially designed for handicapped persons must be made with the specific purpose and intent to be used by or benefit handicapped persons rather than the general public.” The Court of Appeals for the Federal Circuit refined this requirement which it found to be incomplete. The court concluded 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. Id. Finally, the legislative history fu

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.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.” U.S. Note 4(b), Subchapter XVII, Chapter 98, HTSUS.Accordingly, eligibility within subheading 9817.00.96, HTSUS, depends on whether the article in question 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. See subheading 9817.00.96, HTSUS; U.S. Note 4(b), Subchapter XVII, Chapter 98, HTSUS. Note 4(a) to Chapter 98, HTSUS, provides:(a) For purposes of subheadings 9817.00.92, 9817.00.94 and 9817.00.96, theterm “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. This list of exemplar activities indicates that the term “handicapped persons” is to be liberally construed so as to encompass a wide range of conditions, provided the condition substantially interferes with a person’s ability to perform an essential daily task. While the HTSUS and subchapter notes do not provide a proper definition of “substantial” limitation, the inclusion of the word “substantially” denotes that the limitation must be “considerable in amount” or “to