Articles for the handicapped; Subheading 9817.00.96; Wheelchair Seat Cushions

H330202
December 5, 2024
OT:RR:CTF:VS H330202 TMF
CATEGORY: Classification Henry Yeh Kuehne + Nagel, Inc. 20000 S Western Ave Torrance, CA 90501 RE: Articles for the handicapped; Subheading 9817.00.96; Wheelchair Seat Cushions Dear Mr. Yeh: This is in response to your request dated January 17, 2023, on behalf of your client, Sunrise Medical US LLC, for a binding ruling concerning the eligibility of certain Jay line wheelchair seat cushions, for duty-free treatment under subheading 9817.00.96, Harmonized Tariff Schedule of the United States (HTSUS). FACTS: According to your client, Jay is a brand of seating products owned by Sunrise Medical and Sunrise Medical (US) LLC, which are the legal manufacturers of Jay products that are sold through authorized dealers. According to your client’s website, jaycushions.net, Sunrise Medical is an authorized dealer of Jay products. Their website, https://www.sunrisemedical.com/, has the following disclaimer on their website: Your client states that it manages its own website, but not the advertisements of authorized dealers. We found several wheelchair cushions sold on Amazon, but Sunrise states it does not sell on Amazon. There are seven styles of wheelchair cushions at issue: Jay Basic, Jay Basic Pro, Jay Go, Jay Ion, Jay Lite, Jay Soft Combi, and Jay Zip. All styles are ergonomically

contoured, rectangular cushions that contain multiple layers and available in many shapes and sizes ranging from 14" x 14" to 24" x 24", made of synthetic cushion products made from different cores of liquid, gel, or foam with various textile cover styles. Your client states that only the Jay Basic wheelchair cover is offered with a moisture resistant cover that is marketed to users with permanent or chronic medical conditions such as incontinence to provide better hygiene. Although not listed in the sample photos below, the Jay 2 wheelchair cushion, was the subject of New York Ruling Letter (NY) K85854, dated May 27, 2004. Your client states that both the Jay 2 and Jay Basic wheelchair cushions are moisture resistant, but not waterproof due to the cover seams. On the website, all the cushion styles are advertised and sold with Jay line power wheelchairs, as well as sold separately as replacements for use with other Jay line power wheelchairs. Additional information can be found on the Sunrise Medical website at: https://www.sunrisemedical.com/seating-positioning/jay/wheelchair-cushions. The images below represent the bare cushion, and the same cushion with one or more textile covers. A specific type of cover may be required due to problems such as with eating or incontinence. Jay Basic Jay Basic Pro Jay Go Jay Ion Jay Lite Jay Soft Combi Jay Zip 2

You state that Sunrise Medical has been importing these goods and has claimed eligibility under subheading 9817.00.96, HTSUS, since the issuance of New York Ruling Letter (NY) K85854, dated May 27, 2004, which examined substantially similar wheelchair cushions, including the Jay Basic. The requester seeks a new ruling since some of the models have changed. ISSUE: Whether the subject wheelchair cushions are 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 merchandise is “specially designed or adapted for the use or benefit of the blind or physically and mentally handicapped persons,” and whether they fall 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) [f]or 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 oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, or working. See 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. In this case, the condition is the limitation of walking. 3

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.” 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, 319 F.Supp.3d 1312, (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, 1336 (Ct. Int’l Trade 2017). See also, Sigvaris 899 F.3d 1308, wherein the Court of Appeals for the Federal Circuit 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 further aids our analysis of these terms as used in subheading 9817.00.96, HTSUS. The Senate stated in its Report that one of the goals of this law was to benefit the handicapped and show U.S. support for the rights of the handicapped. The Senate stated, in relevant part: By providing for duty-free treatment of articles specially adapted for the blind or other physically or mentally handicapped persons, the committee does not intend that an insignificant adaptation would result in duty-free treatment for an entire relatively expensive article. Otherwise, the special tariff category will create incentives for commercially motivated tariff-avoidance schemes and pre-import and post-entry manipulation. Rather, the committee intends that, in order for an entire modified article to be accorded duty-free treatment, the modification or adaptation must be significant, so as clearly to render the article for use by handicapped persons. 4

S. Rep. No. 97 564, 97th Cong. 2nd Sess. (1982). The Senate was concerned that persons would misuse this tariff provision to avoid paying duties on expensive products. Similarly, in Danze, the court looked to the legislative history and noted that its interpretation of the terms “specially” and “designed” in Sigvaris comported with the legislative intent behind subheading 9817.00.96, HTSUS, that any modification or adaptation be “significant.” CBP has recognized several factors to be utilized and weighed against each other on a case-by-case basis when determining whether a particular product is “specially designed or adapted” for the benefit or use of handicapped persons. See U.S. Customs Serv. Implementation of the Duty-Free Provisions of the Nairobi Protocol, Annex E, to the Florence Agreement, T.D. 92-77, 26 Cust. B. & Dec. 240, 241 (1992) (“Implementation of the Nairobi Protocol”) at 243-244. These factors include: (1) the physical properties of the article itself (i.e., whether the article is easily distinguishable by properties of the design, form, and the corresponding use specific to this unique design, from articles useful to non-handicapped persons); (2) whether any characteristics are present 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) whether articles are imported by manufacturers or distributors recognized or proven to be involved in this class or kind of articles for the handicapped; (4) whether the articles are sold in specialty stores which serve handicapped individuals; and, (5) whether the condition of the articles at the time of importation indicates that these articles are for the handicapped. See also Danze, Slip Op. 18-69; Sigvaris, 227 F.Supp.3d 1327, aff’d, 899 F.3d 1308. The Court of Appeals for the Federal Circuit in Sigvaris, 899 F.3d. 1308, found that “[t]hese factors aid in assessing whether the subject merchandise is intended for the use or benefit of a specific class of persons to a greater extent than for the use or benefit of others.” The court adopted these factors into its analysis. Regarding whether the cushions at issue are “specially designed”, we find the cushions are distinguishable from other cushions useful to the public as they are sold by Jay’s affiliate, Sunrise Medical, which sells Jay wheelchairs. The subject cushions are specially designed, adapted, marketed and sold exclusively for use with Jay wheelchairs, not other products, for handicapped persons who use the wheelchair principally for transportation. In addition, we note that the Sunrise website displays some cushions permanently affixed to Jay wheelchairs, and other cushions as replacements for Jay wheelchairs. All these styles are specially designed with specific contoured, padding to exclusively accommodate use on Jay wheelchairs for extensive, all-day use by handicapped persons. Based on this, we believe the subject wheelchair cushions would be imported into the U.S. for sale exclusively to the handicapped community. Therefore, it is our view that the seven wheelchair cushions are eligible for duty-free treatment as adaptive articles of subheading 9817.00.96, HTSUS. 5

HOLDING: The seven wheelchair cushions, identified as: Jay Basic, Jay Basic Pro, Jay Go, Jay Ion, Jay Lite, Jay Soft Combi, and Jay Zip are eligible for subheading 9817.00.96, HTSUS, which provides for “articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons. . . other.” 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.”
Sincerely,
Monika R. Brenner, Chief Valuation and Special Programs Branch 6