Game of Thrones, the HTSUS Edition

Heading 9817 of the Harmonized Tariff Schedule of the United States includes a subheading covering the following:

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: 

The question presented to the U.S. Court of International Trade in Danze, Inc. v. United States is whether certain toilets and toilet tanks fall within this subheading and are, therefore, entitled to duty-free entry to the United States.

The basis for the plaintiff's argument is that the merchandise complies with the Americans With Disabilities Act. The toilets include the Orrington High-Efficiency One-Piece model shown here and the Cirtangular Two-Piece. The tank involved is the Orrington tank. Note that none of these products have any obvious adaptations for the disabled such as grab bars. Nevertheless, the toilets meet the ADA requirements for accessibility. According to Danze literature, the ergonomics of the toilets make sitting and standing more comfortable for users.

Tariff item 9817.00.96 implements the Nairobi Protocol to the Florence Agreement on the Importation of Educational, Scientific and Cultural Materials. Part of the intent of the protocol is to provide “duty free treatment to articles for the use or benefit of the physically or mentally handicapped persons, in addition to articles for the blind."

There are two question that relate to the application of this provision to imported goods. First, is the item specially designed in some way to accommodate the user? Second, is that accommodation related to a physical or mental handicap? According to the legal notes to Chapter 98, "'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. 

"Specially designed" is not defined in the HTSUS. However, Courts have previously construed this term and the legislative history provides guidance. In the end, the Court held 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.” Moreover, "[a]ny adaptation or modification to an article to render it for use or benefit by handicapped persons must be significant."

There is no debate that these products comply with the ADA and associated federal guidelines. The question is whether that is enough to meet the classification requirement. According to the Government in this case, mere compliance with the ADA is not sufficient to show a significant adaption.

According to the Court, the ergonomic design of these toilets (and the associated tank) is primarily the seat height, which makes them comfortable. This toilet height has become a popular option for general consumers, not just (or predominantly) the disabled. This is also true of the flush controls and the elongated bowl design.

Without more evidence of specific and significant adaptation to disabled users, Danze was unable to show that these toilets were specially designed or adapted for the use or benefit of the disabled. Rather, it appears that they are consumer-oriented products that also satisfy the requirements of the ADA. Accordingly, the Court of International granted summary judgment in favor of the United States.

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