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

cc: Regional Commissioner of Customs

c/o Protest and Control Section

Room 762

6 World Trade Center

New York, NY 10048-0945