The opinion
Slip Op. 18-69
UNITED STATES COURT OF INTERNATIONAL TRADE
DANZE, INC.,
Plaintiff,
Before: Mark A. Barnett, Judge
v.
Court No. 13-00381
THE UNITED STATES,
Defendant.
OPINION
[The court finds that U.S. Customs and Border Protection correctly classified the subject
imports. Accordingly, the court denies Plaintiff’s motion for summary judgment and
grants Defendant’s cross-motion for summary judgment.]
Dated: June 19, 2018
John M. Peterson and Richard F. O’Neill, Neville Peterson LLP, of New York, NY, for
Plaintiff Danze, Inc.
Edward F. Kenny, Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of New York, NY, for Defendant United States. With him on the
brief were Chad A. Readler, Acting Assistant Attorney General, and Amy M. Rubin,
Assistant Director, International Trade Field Office. Of counsel on the brief was Sheryl
A. French, Attorney, Office of the Assistant Chief Counsel, International Trade Litigation,
U.S. Customs and Border Protection.
Barnett, Judge: This action addresses whether various models of vitreous china
toilets and a particular toilet tank are “specially designed for the use or benefit of
handicapped persons” and are therefore entitled to duty-free treatment under
subsection 9817.00.96 of the Harmonized Tariff Schedule of the United States
Court No. 13-00381 Page 2
(“HTSUS”). 1 Before the court are cross-motions for summary judgment. Pl.’s Mot. for
Summ. J., ECF No. 34; Mem. in Supp. of Pl.’s Mot. for Summ. J (“Pl.’s Mem.”), ECF No.
34-2; Def.’s Cross-Mot. for Summ. J. and Mem. in Opp’n to Pl.’s Mot. for Summ. J. and
in Supp. of Def.’s Cross-Mot. for Summ. J. (“Def.’s Mem.”), ECF No. 39. Plaintiff,
Danze Inc. (“Plaintiff” or “Danze”), contends that the subject merchandise is classifiable
under subheading 9817.00.96 because the products were specially designed to meet
the requirements of the Americans with Disabilities Act of 1990, Pub. L. No. 101-336,
104 Stat. 327 (1990) (codified at 42 U.S.C. §§ 12101-12213). See, e.g., Pl.’s Mem. at
1, 4-5. 2 The United States (“Defendant” or the “Government”) maintains that mere
compliance with ADA standards does not render the merchandise classifiable under
subheading 9817.00.96. See, e.g., Def.’s Mem. at 6. The Government asserts that
U.S. Customs and Border Protection (“Customs”) correctly classified the merchandise
under subheading 6910.10.00, HTSUS. Id. at 21. For the reasons discussed below,
the court denies Plaintiff’s motion for summary judgment and grants Defendant’s cross-
motion for summary judgment.
1 All citations to the HTSUS are to the 2011 and 2012 versions, which are identical in all
relevant respects, as determined by the date of importation of the merchandise. See
LeMans Corp. v. United States, 660 F.3d 1311, 1314 n.2 (Fed. Cir. 2011). The subject
merchandise entered on various dates between December 2011 and March 2012. Pl.’s
Statement of Material Facts as to which No Genuine Issue Exists (“Pl.’s SOF”) ¶¶ 1, 3,
ECF No. 35; Def.’s Resp. to Pl.’s Statement of Material Facts Not in Issue (“Def.’s Resp.
to Pl.’s SOF”) ¶¶ 1, 3, ECF No. 40.
2 Four entries are at issue: Entry Numbers MR5-40440556, MR5-40454474, MR5-
40448468, MR5-40461883. Pl.’s Am. Ex. A (Entry Documents), ECF No. 43.
Court No. 13-00381 Page 3
BACKGROUND
I. Material Facts Not in Dispute
The party moving for summary judgment must show “there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.”
United States Court of International Trade (“USCIT”) Rule 56(a). Parties filed cross-
motions for summary judgment and submitted separate statements of undisputed
material facts with their respective motions and responses to the opposing party’s
statements. See Pl.’s SOF; Def.’s Resp. to Pl.’s SOF; Def.’s Statement of Undisputed
Material Facts (“Def.’s SOF”), ECF No. 39-1; Pl.’s Resp. to Def.’s Statement of
Undisputed Material Facts (“Pl.’s Resp. to Def.’s SOF”), ECF No. 44-1. Upon review of
the parties’ facts (and supporting exhibits), the court finds the following undisputed and
material facts. 3
Danze is a designer and distributor of kitchen and bath faucets and fixtures, and
designed the subject merchandise. Def.’s SOF ¶¶ 6, 10; Pl.’s Resp. to Def.’s SOF
¶¶ 6, 10. The subject merchandise consists of four models of vitreous china 4 toilets5
3 Citations are provided to the relevant paragraph number of the undisputed facts and
response; internal citations generally have been omitted.
4 Vitreous china is “a hard-fired ceramic ware that has a dense, vitrified, but opaque
body, and is used esp. for plumbing fixtures.” Webster’s Third New Int’l Dictionary of
the English Language Unabridged (2002) (“Webster’s”) at 2559.
5 The term “toilet” refers to both two-piece toilets, which consist of a separate tank and
toilet bowl, and one-piece toilets, which includes the toilet tank and bowl designed as a
single unit. See Pl.’s Exs. C-1—C-5 (product information for the subject merchandise),
ECF No. 36-3. A “toilet bowl” is “the portion of the toilet that is round or oval and open
at the top and can be flushed with water.” Pl.’s SOF ¶ 17; Def.’s Resp. to Pl.’s SOF
¶ 17. A “toilet tank” is “the part of the toilet that is a cistern tank for storing water used to
flush the toilet.” Pl.’s SOF ¶ 17; Def.’s Resp. to Pl.’s SOF ¶ 17. Of the four toilets at
Court No. 13-00381 Page 4
and one vitreous china toilet tank manufactured in the People’s Republic of China and
imported into the United States between December 2011 and March 2012. Pl.’s SOF
¶¶ 1-3; Def.’s Resp. to Pl.’s SOF ¶¶ 1-3. The toilets at issue are the: 1) Orrington 1
Piece High Efficiency Toilet (“HET”), Model No. DC011323; 2) Cirtangular 2 Piece HET,
Model No. DC023330-DC022321; 3) Cobalt 1 Piece HET, Model No. DC061421; and 4)
Ziga Zaga 1 Piece HET, Model No. DC031221. Def.’s SOF ¶ 2; Pl.’s Resp. to Def.’s
SOF ¶ 2. The toilet tank at issue is the Orrington Toilet Tank, Model No. DC012223.
Def.’s SOF ¶ 3; Pl.’s Resp. to Def.’s SOF ¶ 3.
Danze intentionally designed the subject merchandise to have characteristics—
such as specific dimensional properties and design, including the location and
performance of operable parts—that contribute to merchandise functionality. Pl.’s SOF
¶ 11; Def.’s Resp. to Pl.’s SOF ¶ 11. According to the National Consensus Standards
for Vitreous China Plumbing Fixtures, adult water closets must have a minimum toilet
bowl “rim height” of 13 1/2 inches. Pl.’s SOF ¶ 12; Def.’s Resp. to Pl.’s SOF ¶ 12. The
toilet bowls here have a “rim height” measuring at least 16 1/2 inches from the finished
floor to the bowl rim after installation. 6 Pl.’s SOF ¶¶ 14-15; Def.’s Resp. to Pl.’s SOF
¶¶ 14-15. Specifically, the Cobalt measures 16 7/8 inches from the finished floor to the
issue, three models are one-piece, while one model is a two-piece toilet. See Pl.’s Ex.
C-1—C-5.
6 “The toilet bowl ‘rim’ refers to the top front edge of the toilet bowl, and ‘rim height’
refers to a measurement taken from the base floor to the toilet bowl’s uppermost front
edge.” Pl.’s Mem. at 2 n.4. “The ‘rim height’ excludes the thickness of the toilet seat
and toilet seat cover.” Pl.’s SOF ¶ 14; Def.’s Resp. to Pl.’s SOF ¶ 14.
Court No. 13-00381 Page 5
bowl rim; the remaining three toilets measure 16 1/2 inches for the same distance.
Def.’s SOF ¶ 13; Pl.’s Resp. to Def.’s SOF ¶ 13. 7
Danze’s product information documents for each toilet state that the toilet
package includes the toilet seat, which is to be installed separately. See Pl.’s Ex. C-1—
C-5 at Bates 257, 235, 283, 303 (“Description”) and Bates 237, 259-260, 285, 305-306
(“Before Installation”). The information documents setting forth the product dimensions
do not specify the seat height. 8 See, e.g., Pl.’s Ex. C-1 at Bates 235 (including
measurements for overall height, length, and width; tank width and length; and rim
height, but no measurement for seat height). While the specific toilet models were
unavailable, 9 a measurement of two similar models revealed that after installation of the
seat, the height from the finished floor to the top of the toilet seat was at least 17 inches.
Pl.’s SOF ¶¶ 51, 55; Def.’s Resp. to Pl.’s SOF ¶¶ 51, 55; Pl.’s Ex. H (Dep. Tr. of
Thomas Kevin McJoynt) at 86:18-87:18, ECF No. 36-9; Pl.’s Ex. D (Decl. of T. Kevin
McJoynt) ¶¶ 7-8, 10, 13 & Exs. A-C (photographs), ECF No. 36-4. The subject toilets
were imported into the United States with a seat included. Pl.’s Ex. H at 126:3-15.
7 Indeed, all of the toilets that Danze markets measure, at minimum, 16 1/2 inches from
the finished floor to the bowl rim. Def.’s SOF ¶ 14; Pl.’s Resp. to Def.’s SOF ¶ 14.
8 “Seat height” refers to the distance between the uppermost surface on which a user
sits when using the toilet and the finished floor. Pl.’s SOF ¶ 19; Def.’s Resp. to Pl’s
SOF ¶ 19. The seat height excludes the “toilet seat cover” that may be installed to
cover the toilet seat when it is not in use. Pl.’s SOF ¶ 19; Def.’s Resp. to Pl’s SOF ¶ 19.
9 Danze discontinued the subject merchandise and thus was unable to produce actual
samples of any of the complete toilets nor their corresponding toilet seats or seat
specifications. Pl.’s Ex. D ¶ 6; Def.’s SOF ¶ 24; Pl.’s Resp. to Def.’s SOF ¶ 24. Danze
was only able to produce an identical sample of the toilet tank. Pl.’s Ex. D ¶ 7.
Court No. 13-00381 Page 6
None of the imported toilets includes a toilet seat that springs to return to a lifted
position. Pl.’s SOF ¶ 21; Def.’s Resp. to Pl.’s SOF ¶ 21; Pl.’s Ex. H at 126:3-15.
The toilets and tank have the flush control on the outside of the tank, connected
to a lever arm on the inside of the tank, which is attached by a thin chain to a three-inch
round rubber flapper valve at the bottom of the tank. Def.’s SOF ¶ 17; Pl.’s Resp. to
Def.’s SOF ¶ 17. The flush controls are positioned less than 36 inches above the
finished floor and can be operated by one hand with a force not exceeding five pounds.
Pl.’s SOF ¶¶ 23-25, 27; Def.’s Resp. to Pl.’s SOF ¶¶ 23-25, 27. The flush controls do
not require “a user to tightly grasp, pinch or twist their wrist” in order to flush. Pl.’s SOF
¶ 26; Def.’s Resp. to Pl.’s SOF ¶ 26. The flush control “for all of the toilets . . . are only
available in left side mount configurations, as viewed from the perspective of a person
facing the toilet tank.” Def.’s SOF ¶ 16; Pl.’s Resp. to Def.’s SOF ¶ 16.
Toilet bowls usually possess either a round or elongated (oval) shape. Def.’s
SOF ¶ 19; Pl.’s Resp. to Def.’s SOF ¶ 19. Toilets with a round bowl typically protrude a
maximum of 28 inches from the finished wall, conserving space in a smaller bathroom.
Def.’s SOF ¶ 20; Pl.’s Resp. to Def.’s SOF ¶ 20. Toilets with an elongated bowl typically
protrude up to 31 inches from the finished wall, thus occupying more space than a
round toilet bowl. Def.’s SOF ¶ 22; Pl.’s Resp. to Def.’s SOF ¶ 22. An elongated bowl,
however, is more comfortable for users. Def.’s SOF ¶ 21; Pl.’s Resp. to Def.’s SOF
¶ 21. The subject toilets “feature an elongated oval bowl shape but have a more
compact overall footprint.” Def.’s SOF ¶ 11; Pl.’s Resp. to Def.’s SOF ¶ 11. A 2008
internal Danze memorandum states that the company’s decision to develop a line of
Court No. 13-00381 Page 7
high efficiency compact elongated toilets arose from “[t]he demands . . . from
geographic areas where the bathrooms are typically small. By reducing the foot print
and maintaining the flushing performance, we are able to provide great aesthetic
solutions to our customers.” Pl.’s Ex. F-1 (Aug. 25, 2008 Danze Project Mem.) at Bates
667, ECF No. 36-7; Pl.’s Ex. H at 99. This same memorandum specifies that the
products must be ADA-compliant. Pl.’s Ex. F-1 at 668.
Danze sells the subject merchandise “through national, regional, and local
plumbing retailers and contractors.” Def.’s SOF ¶ 8; Pl.’s Resp. to Def.’s SOF ¶ 8. The
product information on each model states that it meets the ADA Accessibility Guidelines
for Buildings and Facilities. Pl.’s SOF ¶ 22; Def.’s Resp. to Pl.’s SOF ¶ 22. Moreover,
Danze’s website, the product packaging, and third-party sellers describe the subject
toilets as ADA compliant. Pl.’s SOF ¶¶ 31-33; Def.’s Resp. to Pl.’s SOF ¶¶ 31-33; see
also Pl.’s SOF ¶ 65; Def.’s Resp. to Pl.’s SOF ¶ 65. The toilet tank at issue may only be
installed with a specific toilet bowl, which Danze’s product information indicates is ADA
compliant. Pl.’s SOF ¶¶ 62-63; Def.’s Resp. to Pl.’s SOF ¶¶ 62-63. 10
Danze describes its toilets, including the subject toilets as “ergonomically
designed at a level that makes sitting and standing more comfortable for any age
group.” Def.’s SOF ¶¶ 15, 23; Pl.’s Resp. to Def.’s SOF ¶¶ 15, 23; Pl. Ex. E-1 (Danze
10While the Defendant does not dispute this fact, it avers that the citation provided by
Danze does not support the statement. Def.’s Resp. to Pl.’s SOF ¶¶ 62. It appears to
the court that Danze mis-cited the supporting pages of the McJoynt deposition, citing
pages 90-93 when they should have cited pages 80-83. See Pl.’s Ex. H at 80-83. In
any case, Defendant acknowledges that any dispute with respect to this statement is
not material.
Court No. 13-00381 Page 8
Catalog) at Bates 515, ECF No. 36-5. Its product catalog describes Danze’s design
philosophy “for all products as that of ‘Universal Design.’” Def.’s SOF ¶ 27; Pl.’s Resp.
to Def.’s SOF ¶ 27; Pl. Ex. E-1 at Bates 515. On its website, Danze states: “Our high
efficiency toilets conform to universal design standards and give you all those little
touches . . . whether it be great flushing power, a perfect height, elongated bowl or slow
closed lids[.]” Def.’s SOF ¶ 28; Pl.’s Resp. to Def.’s SOF ¶ 28 (alteration omitted).
Danze does not maintain any data showing the percentage of end users, with or
without physical handicaps, of the imported merchandise. Def.’s SOF ¶ 26; Pl.’s Resp.
to Def.’s SOF ¶ 26.
II. Procedural History
Danze entered the merchandise pursuant to subheading 6910.10.00, HTSUS, 11
dutiable at 5.8 percent ad valorem, at the port of Chicago, Illinois. Pl.’s SOF ¶ 4; Def.’s
Resp. to Pl.’s SOF ¶ 4. Thereafter, Danze timely and properly protested the liquidation
of these entries, claiming that the merchandise is secondarily classifiable pursuant to
subheading 9817.00.96. Pl.’s SOF ¶ 6; Def.’s Resp. to Pl.’s SOF ¶ 6. Customs denied
Danze’s protests in full, stating, “Per attached product specifications, all models contain
a floor to rim height less than 17 inches, no specific information provided on seat size,
and design, etc.” Pl.’s Ex. A at Bates 004. Danze challenges the denial of its protests.
11Subheading 6910.10.00 covers: “Ceramic sinks, washbasins, washbasin pedestals,
baths, bidets, water closet bowls, flush tanks, urinals and similar sanitary fixtures: Of
porcelain or china,” and has a duty rate of 5.8 percent ad valorem.
Court No. 13-00381 Page 9
JURISDICTION AND STANDARD OF REVIEW
The court has subject matter jurisdiction pursuant to 28 U.S.C. § 1581(a).
Jurisdiction is uncontroverted. Compl. ¶ 2, ECF No. 10; Answer ¶ 2, ECF No. 17.
The Court may grant summary judgment when “there is no genuine issue as to
any material fact,” and “the moving party is entitled to judgment as a matter of law.”
Anderson v. Liberty Lobby, 477 U.S. 242, 247 (1986); USCIT Rule 56(a). 12 The court's
review of a classification decision involves two steps. First, it must determine the
meaning of the relevant tariff provisions, which is a question of law. See Bausch &
Lomb, Inc. v. United States, 148 F.3d 1363, 1365 (Fed. Cir. 1998) (citation omitted).
Second, it must determine whether the merchandise at issue falls within a particular
tariff provision, as construed, which is a question of fact. Id. (citation omitted). When no
factual dispute exists regarding the merchandise, resolution of the classification turns
solely on the first step. See id. at 1365–66; see also Carl Zeiss, Inc. v. United States,
195 F.3d 1375, 1378 (Fed. Cir. 1999).
The court reviews classification cases de novo. See 28 U.S.C. § 2640(a). While
the court accords deference to Customs classification rulings relative to their “power to
persuade,” United States v. Mead Corp., 533 U.S. 218, 235 (2001) (quoting Skidmore v.
Swift & Co., 323 U.S. 134, 140 (1944)), it has “an independent responsibility to decide
12When parties have filed cross-motions for summary judgment, the court generally
must evaluate each party’s motion on its own merits, drawing all reasonable inferences
against the party whose motion is under consideration. JVC Co. of America, Div. of US
JVC Corp. v. United States, 234 F.3d 1348, 1351 (Fed. Cir. 2000); Specialty
Commodities Inc. v. United States, 40 CIT ___, ___, 19 F. Supp. 3d 1277, 1282 (2016).
Here, the material facts are undisputed.
Court No. 13-00381 Page 10
the legal issue of the proper meaning and scope of HTSUS terms,” Jedwards Int’l, Inc.
v. United States, 40 CIT ___, ___, 161 F. Supp. 3d 1354, 1357 (2016) (quoting
WarnerLambert Co. v. United States, 407 F.3d 1207, 1209 (Fed. Cir. 2005)). It is “the
court’s duty to find the correct result, by whatever procedure is best suited to the case at
hand.” Jarvis Clark Co. v. United States, 733 F.2d 873, 878 (Fed. Cir. 1984).
DISCUSSION
I. Legal Framework
The General Rules of Interpretation (“GRIs”) provide the analytical framework for
the court's classification of goods. See N. Am. Processing Co. v. United States, 236
F.3d 695, 698 (Fed. Cir. 2001). “The HTSUS is designed so that most classification
questions can be answered by GRI 1.” Telebrands Corp. v. United States, 36 CIT ___,
___, 865 F. Supp. 2d 1277, 1280 (2012), aff’d 522 F. App’x 915 (Fed. Cir. 2013). GRI 1
states that, “for legal purposes, classification shall be determined according to the terms
of the headings and any [relevant] section or chapter notes.” GRI 1, HTSUS. “The first
four digits of an HTSUS provision constitute the heading, whereas the remaining digits
reflect subheadings.” Schlumberger Tech. Corp. v. United States, 845 F.3d 1158, 1163
n.4 (Fed. Cir. 2017). Relevant here, 13 “the classification of goods in the subheadings of
13 In the present case, the parties agree that the articles at issue were properly
classified pursuant to subheading 6910.10.00, HTSUS. Pl.’s Mem. at 4; Def.’s Mem. at
8. The sole issue is whether the subject merchandise is secondarily classifiable in
subheading 9817.00.96, HTSUS. Pl.’s Mem. at 4; Def.’s Mem. at 8. “Chapter 98 does
not contain four-digit headings, but rather, is a collection of eight- or ten-digit
subheadings covering a diverse array of articles.” WWRD U.S., LLC v. United States,
41 CIT __, __, 211 F. Supp. 3d 1365, 1374 (2017), aff'd sub nom. WWRD US, LLC v.
United States, 886 F.3d 1228 (Fed. Cir. 2018).
Court No. 13-00381 Page 11
a heading shall be determined according to the terms of those subheadings and any
related subheading notes and, mutatis mutandis, to the above [GRIs] on the
understanding that only subheadings at the same level are comparable.” GRI 6,
HTSUS; see also WWRD US, LLC, 886 F.3d at 1232. For purposes of GRI 6, “the
relative section, chapter, and subchapter notes also apply, unless the context otherwise
requires.” GRI 6, HTSUS.
The court considers chapter and section notes of the HTSUS in resolving
classification disputes because they are statutory law, not interpretive rules. See Arko
Foods Int’l, Inc. v. United States, 654 F.3d 1361, 1364 (Fed. Cir. 2011) (citations
omitted); see also Park B. Smith, Ltd. v. United States, 347 F.3d 922, 929 n.3 (Fed. Cir.
2003) (chapter and section notes are binding on the court). “Absent contrary legislative
intent, HTSUS terms are to be ‘construed [according] to their common and popular
meaning.’” Baxter Healthcare Corp. of Puerto Rico v. United States, 182 F.3d 1333,
1337 (Fed. Cir. 1999) (quoting Marubeni Am. Corp. v. United States, 35 F.3d 530, 533
(Fed. Cir. 1994)). Courts may rely upon their own understanding of terms or consult
dictionaries, encyclopedias, scientific authorities, and other reliable information.
Brookside Veneers, Ltd. v. United States, 847 F.2d 786, 789 (Fed. Cir. 1988); BASF
Corp. v. United States, 35 CIT ___, ___, 798 F. Supp. 2d 1353, 1357 (2011).
II. Analysis of the Terms of HTSUS 9817.00.96
The court must first ascertain the proper meaning and scope of HTSUS
9817.00.96. See Bausch, 148 F.3d at 1365. Congress passed the Educational,
Scientific, and Cultural Materials Importation Act of 1982, Pub. L. No. 97-446, 96 Stat.
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2329, 2346 (1983), and the Omnibus Trade and Competitiveness Act of 1988, Pub. L.
No. 100-418, 102 Stat. 1107 (1988), to implement the Nairobi Protocol to the Florence
Agreement on the Importation of Educational, Scientific and Cultural Materials (“Nairobi
Protocol”), an international agreement intended 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.” 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) (“Customs’ Implementation of the Nairobi
Protocol”). 14 This legislation eliminated duties for products covered by subheading
9817.00.96 of the HTSUS, which includes: “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.”15 Subheading 9817.00.96, HTSUS; see also Sigvaris, Inc. v. United States, 41
14 The Nairobi Protocol, “which went into effect on January 2, 1982, 1259 U.N.T.S. 2,
broadened the scope of the Florence Agreement on the Importation of Educational,
Scientific and Cultural Materials, opened for signature November 22, 1950, T.I.A.S. No.
6129, 17 U.S.T. 1835, 131 U.N.T.S. 25, by embracing technologically-new articles and
previously-uncovered works of art, films,” and other articles that would benefit the
physically or mentally handicapped persons, in addition to the blind. Starkey Labs., Inc.
v. United States, 22 CIT 360, 361 n.1, 6 F. Supp. 2d 910, 911 n.1 (1998), adhered to on
recons., 24 CIT 504, 110 F. Supp. 2d 945 (2000) (emphasis removed); Customs’
Implementation of the Nairobi Protocol, 26 Cust. B. & Dec. at 241.
15 Pursuant to Note 1 to Chapter 98, subheading 9817.00.96 “[is] not subject to the rule
of relative specificity in [GRI] 3(a). Any article which is described in any provision in this
chapter is classifiable in said provision if the conditions and requirements thereof and of
any applicable regulations are met.” Note 1, Chapter 98, HTSUS.
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CIT ___, 227 F. Supp. 3d 1327, 1335 (2017). 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.
As the language of this provision indicates, classification within subheading
9817.00.96 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
provides that the term “‘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. 16 See Sigvaris, 227 F. Supp.
3d at 1335. While the HTSUS and subchapter notes do not provide a proper definition
of “substantial” limitation, “the inclusion of the word ‘substantially’ denotes that the
16Common sense dictates, and no party questions, that using the toilet constitutes an
essential daily task.
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limitation must be ‘considerable in amount’ or ‘to a large degree.’” Id. at 1335 (citing
Webster’s at 2280).
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 may rely upon its own understanding of the terms or consult
dictionaries and other reliable information. Brookside Veneers, 847 F.2d at 789; BASF
Corp., 798 F. Supp. 2d at 1357. In analyzing this same provision in Sigvaris, the court
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 . . . .
227 F. Supp. 3d at 1336. The legislative history further informs the court’s analysis of
these terms as used in subheading 9817.00.96, HTSUS. The legislative history of this
subheading indicates that Congress did “not intend that an insignificant adaptation
would result in duty-free treatment for an entire relatively expensive article.” S. Rep.
No. 97-564, at 19 (1982). Rather, “the modification or adaptation must be significant so
as to clearly render the article for use by handicapped persons.” Id. Fundamentally,
this court “interpret[s] statutory language to carry out legislative intent.” Rubies
Costume, Co. v. United States, 337 F.3d1350, 1357 (Fed. Cir. 2003) (citing Nippon
Kogaku (USA), Inc. v. United States, 69 C.C.P.A. 89, 673 F.2d 380, 383 (1982)); see
also EOS of N. Am., Inc. v. United States, 37 CIT ___, ___, 911 F. Supp. 2d 1311, 1318
Court No. 13-00381 Page 15
(2013). The court’s interpretation of the terms “specially” and “designed” in Sigvaris
comports with the legislative intent behind subheading 9817.00.96, HTSUS, that any
modification or adaptation be “significant.” Accordingly, “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.” Sigvaris, 227 F. Supp.
3d at 1336 (citing Marubeni Am. Corp., 35 F.3d at 534 (“construing a provision with
similar language that covered ‘motor vehicles principally designed for the transport of
persons’”)). Any adaptation or modification to an article to render it for use or benefit by
handicapped persons must be significant.
Customs 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
Customs’ Implementation of the Nairobi Protocol, 26 Cust. Bull. & Dec. at 243-244.
Those factors include: the physical properties of the product in question; “the probability
of general public use”; the specific design of the particular product; and whether the
product is sold in specialty stores that serve handicapped persons. Id.
III. Classification of the Subject Merchandise
a. Parties’ Contentions
At the outset, Defendant does not contend that the merchandise falls within any
of the enumerated exceptions to subheading 9817.00.96. See U.S. Note 4(b),
Subchapter XVII, Chapter 98, HTSUS. According to Plaintiff, Danze specially designed
the subject merchandise to meet the relevant minimum standards established by the
Court No. 13-00381 Page 16
U.S. Department of Justice (“DOJ”) for ADA compliance, 17 and prominently advertises
the merchandise as ADA compliant; therefore, it is “easy to conclude that the subject
toilets are ‘specially designed’ for the use or benefit of handicapped persons.” Pl.’s
Mem. at 4-5. Specifically, the relevant DOJ Standards set forth the following
requirements:
§ 604.4 Seats. The seat height of a water closet above the finish floor
shall be 17 inches (430mm) minimum and 19 inches (485 mm) maximum
measured to the top of the seat. Seats shall not be sprung to return to a
lifted position.
§ 604.6 Flush Controls. Flush controls shall be hand operated or
automatic. Hand operated flush controls shall comply with 309. Flush
controls shall be located on the open side of the water closet except in
ambulatory accessible compartments complying with 604.8.2.
§ 309.4 Operation. Operable parts shall be operable with one hand and
shall not require tight grasping, pinching, or twisting of the wrist. The force
required to activate operable parts shall be 5 pounds (22.2 N) maximum. 18
Id. at 9-10; 2010 Standards at Bates 126, 164, 165. Danze acknowledges that its toilets
measure 16 1/2 inches from the floor to the rim, but contends that when the toilet seat is
installed, the distance from the floor to the seat is at least 17 inches. Pl.’s Mem. at 10.
In the alternative, Danze argues that even without the 2010 Standards, its toilets would
17 In September 2010, the DOJ published ADA Standards for Accessible Design to
provide minimum scoping and technical requirements for newly designed and
constructed or altered government facilities, public accommodations, and commercial
facilities so that individuals with disabilities can access and use those facilities. Pl.’s Ex.
B. (2010 ADA Standards for Accessible Design) (“2010 Standards”) at Bates 046, ECF
No. 36-2.
18 The 2010 Standard define an operable part as “[a] component of an element used to
insert or withdraw objects, or to activate, deactivate, or adjust the element.” Pl.’s Mem.
at 10 n.13; 2010 Standards at Bates 070.
Court No. 13-00381 Page 17
merit duty-free treatment because their height is greater than a standard toilet, which
measures 14 to 15 inches. Pl.’s Mem. at 11 & n.16 (citing Pl.’s Ex. G-1 (HQ 055815
(May 26, 2010), ECF No. 36-8); see also Resp. of Danze, Inc. in Opp’n to Def.’s Cross-
Mot. for Summ. J. and Reply in Supp. of Pl.’s Mot. for Summ. J. (“Pl.’s Reply”) at 7, ECF
No. 44 (“Whenever an ADA compliant product differs in design from its non-ADA
compliant counterpart, the product is ipso facto ‘specially’ designed.”).
According to Danze, HTSUS subheading 9817.00.96 “is meant to be a low
threshold” and the requirement that the product be “specially designed” for use or
benefit of handicapped persons “is not an especially exacting requirement.” Id. at 15.
Danze asserts that the subject toilets meet the low threshold of subheading 9817.00.96
because
they are designed for and capable of use by persons suffering from all
manner of permanent and chronic impairments which may impair their
mobility, confined them to a wheelchair, or make it difficult for them to
lower themselves to, or raise themselves from, a regular height toilet.
These could include paralysis, poliomyelitis, arthritis, and atrophy resulting
from old age or disease.
Id. Danze relies on Customs Ruling HQ H055815 as an acknowledgment by Customs
“that taller-than-average toilets are specially designed for the use or benefit of persons
suffering from mobility handicaps, and qualify for secondary classification under
subheading 9817.00.96, HTSUS.” Pl.’s Reply at 2-4; see also Pl.’s Mem. at 10, 11-12,
17-18.
The Government does not dispute that the toilets, “if installed correctly and
equipped with a seat of 1/2 inch in height would minimally meet ADA seat height
Court No. 13-00381 Page 18
requirements.” Def.’s Reply Mem. in Supp. of its Cross-Mot. for Summ. J. (“Def.’s
Reply”) at 2, ECF No. 45. The Government maintains, however, that mere compliance
with ADA standards does not render a good classifiable under subheading 9817.00.96.
Def.’s Mem. at 6. It asserts that Danze has not designed the subject merchandise with
any significant modification or adaptation so “as to clearly render the articles for the use
or benefit of physically handicapped persons,” nor does it market or sell them “in a
manner that suggests they have been ‘specially designed’” for that purpose. Id.
According to Defendant, the evidence submitted by Plaintiff establishes that products
were designed “to fill a general need for a more compact toilet featuring an elongated
bowl in urban areas where space was at a premium and bathrooms were small,” and
advertised as ADA compliant and ergonomically comfortable “for any age group,” and
“universally designed.” Def.’s Reply at 7. 19 Defendant asserts that Plaintiff has failed to
provide any authority or legislative history to Chapter 98, HTSUS, that identifies any
relationship between ADA compliance and subheading 9817.00.96. Def.’s Mem. at 20-
21.
19The Government cites the Center for Inclusive Design and Environmental Access for
the definitions of universal and accessible design:
Universal design means products and buildings are accessible and usable
by everyone, including people with disabilities. . . . Accessible design has
a tendency to lead to separate facilities for people with disabilities, for
example, a ramp set off to the side of a stairway at an entrance or a
wheelchair accessible toilet stall. Universal design, on the other hand,
provides one solution that can accommodate people with disabilities as
well as the rest of the population.
Def.’s Reply at 7 n.4 (citation omitted).
Court No. 13-00381 Page 19
b. Analysis
The question for the court is whether the merchandise at issue, toilets designed
and meeting ADA standards, qualify for duty-free treatment pursuant to HTSUS
9817.00.96. There is no genuine dispute as to the material facts – the toilets, with a
seat installed, measure at least 17 inches from the floor to the top of the seat and meet
the other relevant ADA standards. Nevertheless, for the reasons discussed below, the
court finds that the subject toilets and toilet tank have not been “specially designed for
the use or benefit of handicapped persons” and do not qualify for duty-free treatment
pursuant to HTSUS 9817.00.17.
The court has considered a number of factors in making its determination,
including the physical properties of the merchandise, whether the merchandise is solely
used by the handicapped, the likelihood the merchandise is useful to the general public,
and the specific design of the merchandise. See Customs’ Implementation of the
Nairobi Protocol, 26 Cust. Bull. & Dec. at 243-244. Each toilet has a rim height of at
least 16 1/2 inches from the floor, Pl.’s SOF ¶¶ 14-15; Def.’s Resp. to Pl.’s SOF ¶¶ 14-
15, which increases to at least 17 inches when the seat is installed, see Pl.’s SOF ¶¶
51, 55; Def.’s Resp. to Pl.’s SOF ¶¶ 51, 55; Pl.’s Ex. H at 86:18-87:18; Pl.’s Ex. D ¶¶ 7-
8, 10, 13 & Exs. A-C. An article from Consumer Reports suggests that toilets taller than
standard toilets, referred to as “comfort toilets,” and measuring 17 to 19 inches high to
the seat top, “have become the most common choice.” Def.’s Ex. 4 (Sept. 2016
Consumer Report, “Toilet Buying Guide”) at 3, ECF No. 39-2. Indeed, all of the toilets
that Danze markets have a minimum measurement of 16 1/2 inches from the finished
Court No. 13-00381 Page 20
floor to the bowl rim, Def.’s SOF ¶ 14; Pl.’s Resp. to Def.’s SOF ¶ 14, and Danze
markets them as, “ergonomically designed at a level that makes sitting and standing
more comfortable for any age group,” Pl. Ex. E-1 at Bates 515. This suggests that the
toilets were intended for the general public and not specifically for the benefit or use of
handicapped persons.
The flush controls for the toilets and toilet tank indicate that flushing is
accomplished in a manner that appears common in many standard toilets. The flush
control connects to a lever arm on the inside of the tank, which is attached by a thin
chain to a three-inch round rubber flapper valve at the bottom of the tank. Def.’s SOF
¶ 17; Pl.’s Resp. to Def.’s SOF ¶ 17. Diagrams for each of the toilets and the toilet tank
depict that the pressing of the flush control raises the lever arm inside the tank, which in
turn, raises the rubber flapper, releasing the water from the tank into the toilet bowl.
Pl.’s Ex. C-1—C-5 at Bates 238, 260, 286, 306, 328. The flush control is positioned on
the left side of the tank, less than 36 inches above the finished floor, and is operable by
one hand with force not exceeding five pounds. Pl.’s SOF ¶¶ 23-25, 27; Def.’s Resp. to
Pl.’s SOF ¶¶ 23-25, 27. Although Danze maintains that the flush handle is ADA
compliant because it requires no more than five pounds to operate and is not positioned
higher than 36 inches from the floor, see Pl.’s Mem. at 3, 5, 9-10, Danze has not
suggested that these features distinguish the subject merchandise from standard toilets.
Each toilet has an elongated bowl and is ergonomically designed to make sitting
and standing more comfortable for any user. Pl.’s Exs. C-1—C-5 at Bates 235, 257,
283, 303; Pl.’s Ex. E-1 at Bates 515; see also Def.’s SOF ¶ 21; Pl.’s Resp. to Def.’s
Court No. 13-00381 Page 21
SOF ¶ 21. Danze’s product catalog advertises the ergonomic features of its toilets as
follows: “Ergonomics aren’t just for luxury cars. We apply them to the most important
seat in the house. That’s why our toilets make sitting and standing easier than ever.”
Pl.’s Ex. E-1 at Bates 433. 20 The same laws of physics that led to the adoption of a 17-
19 inch height standard for the ADA also make these higher toilets easier to use for
much of the population at large. The higher seat alters the angle of the knees such that
less force is required to lower oneself onto or rise off of the toilet, see HQ Ruling
H055815, whether the user is transferring to a wheelchair or simply standing up.
Although the toilets feature an elongated bowl, which typically takes more space
in the bathroom, they have a more compact overall footprint. Def.’s SOF ¶ 11; Pl.’s
Resp. to Def.’s SOF ¶ 11. Danze’s internal memorandum states that the company’s
decision to develop a line of high efficiency compact elongated toilets arose from “[t]he
demands . . . from geographic areas where the bathrooms are typically small. Pl.’s Ex.
F-1 at Bates 667; Pl.’s Ex. H at 99. While this same memorandum specifies that the
products must be ADA-compliant, the memorandum does not indicate the degree of
modification or adaptation, if any, that was required to ensure compliance with ADA
standards, let alone suggest that the modification or adaptation was “significant.” Pl.’s
Ex. F-1 at 668.
20 Moreover, each toilet fits a 12-inch residential rough-in sewer line opening. Pl.’s Exs.
C-1—C-5 at Bates 235, 257, 283, and 303. “A rough-in distance” is “the distance from
the finished wall to the center of the sewer drain for the toilet.” Def.’s Ex. 2 (HGTV.com
Web-Article titled “Choose The Right Toilet For Your Bathroom”) at 2, ECF No. 39-2. A
measurement of 12 inches is standard “and the widest selection of toilets is available in
this size.” Id.
Court No. 13-00381 Page 22
Danze asserts that “[a] toilet can be designed for ADA compliance and for
general comfort without frustrating the scope of subheading 9817.00.96.” Pl.’s Reply at
16. However, the fact that Danze ensured its toilets comply with ADA standards, alone,
is not sufficient to include its toilets within subheading 9817.00.96. Congress passed
the ADA to ‘‘provide a clear and comprehensive national mandate for the elimination of
discrimination against individuals with disabilities.’’ 42 U.S.C. § 12101(b)(1). The ADA
prohibits discrimination against individuals with disabilities in the sectors of employment,
public services, public accommodations, and other sectors of society. See generally
ADA. Congress intended that the ADA be construed broadly. 21 While the court is
mindful that the ADA is to be construed broadly in favor of individuals seeking protection
under that law, this is not the issue before the court. The issue before the court is
whether the subject merchandise is entitled to duty-free treatment simply because it is
ADA compliant. In this case, it would appear that the same dimensional standards that
address a physical barrier to the physically handicapped—higher toilet seats—are also
appreciated by the public at large, such that they have become “the most common
choice.” Def.’s Ex. 4 at 3. Nothing in the language of the subheading, corresponding
tariff notes, or its legislative history indicates that subheading 9817.00.96, HTSUS is to
21 This is confirmed by Congress’ passage of the ADA Amendments Act of 2008, Pub.
L. 110-325, 122 Stat. 3553 (2008), effective January 1, 2009, to abrogate certain U.S.
Supreme Court precedent that improperly narrowed the scope of protection originally
intended by Congress, and ensure that “[t]he definition of disability … be construed in
favor of broad coverage of individuals under [the ADA].” Morriss v. BNSF Ry. Co., 817
F.3d 1104, 1110 (8th Cir. 2016) (citing 42 U.S.C. § 12102(4)(A); 29 C.F.R. Pt. 1630,
App’x § 1630.1(c)).
Court No. 13-00381 Page 23
be construed to provide duty-free treatment for an otherwise mass market product
merely because it also meets the standards adopted to prevent discrimination against
the physically handicapped. 22
Plaintiff’s reference to HQ Ruling H055815 does not persuade the court that a
different outcome is warranted. In Ruling H055815, Customs determined that toilets
measuring 17 inches from the floor to the top of the bowl rim qualified for duty-free
treatment pursuant to subheading 9817.00.96, HTSUS while another toilet measuring
16 1/2 inches from floor to rim did not. Pl.’s Ex. G-1. In its analysis, Customs found it
“unlikely that toilets that measure 17 inches from the floor to the top of the bowl rim
would be acquired other than for the benefit or use of a handicapped individual who is
likely to benefit when transferring from the wheelchair to the toilet.” Id. at Bates 711.
This statement, however, was unsupported by any citation and is contradicted by the
22 Plaintiff cites certain classification rulings pertaining to articles that meet ADA
standards in which Customs determined the articles in question qualify for duty-free
treatment pursuant to subheading 9817.00.96, HTSUS. Pl.’s Mem. at 16-17. However,
none of the cited rulings establish that mere compliance with ADA standards warrants
duty-free treatment. For example, in Ruling N052323, safety bars that mount to wall
studs, used predominantly in the bathroom, supporting a maximum weight of 500
pounds, and meeting ADA standards were determined to be different from ordinary
bathroom towel racks because of the weight they could support and were determined to
be specially designed or adapted for the use or benefit of the physically or mentally
handicapped. Pl.’s Ex. G-2 (NYRL N052323 (March 3, 2009)), ECF No. 36-8. Customs
made similar findings in Ruling N052324 regarding safety bars and shower seats
meeting ADA standards. Pl.’s Ex. G-3 (NYRL N052324 (March 3, 2009)), ECF No. 36-
8. With respect to the shower seat, Customs considered their design and determined
that “the fact that they are mounted to the wall helps to distinguish them from items for
those with temporary disabilities or who just prefer to shower while seated.” Id.
Court No. 13-00381 Page 24
evidence here. Moreover, Customs did not discuss the design issues addressed here
and the correctness of HQ Ruling H055815 is not before the court.
Plaintiff does not address any of the factors cited by Customs, nor point to any
evidence other than its ADA compliance to support its assertions that the products were
specially designed for handicapped persons. In its reply, Danze seeks to clarify that it
“does not contend that compliance [] ADA standard[s] per se deems the article eligible
for duty-free treatment under subheading 9817.00.96, HTSUS.” Pl.’s Reply at 6
(emphasis omitted). It states that “if it can be shown that the article is specially
designed or adapted, compliance with the [2010 Standards] constitutes powerful
evidence that the ‘specially designed or adapted’ requirement necessary for Nairobi
classification has been shown.” Id. at 6-7 (emphasis added). Nevertheless, the only
evidence that Plaintiff provides as proof that the subject merchandise was specially
designed for the use or benefit of the handicapped is the merchandise’s compliance
with the 2010 Standards. See id. at 7-8 (“Plaintiff submits that meeting the [2010
Standards] water closet requirements evidences that instant goods are designed to
benefit handicapped persons.”) (emphasis omitted); id. at 10 (“[T]he goods were
admittedly designed to meet the [2010 Standards].”); id. at 14 (“Because the designs
are admittedly ‘taller than standard toilets,’ it must also be true that the toilets are
‘specially designed for the use or benefit of’ physically handicapped persons.”) (internal
Court No. 13-00381 Page 25
citation omitted). This is insufficient to qualify the merchandise for classification in
subheading 9817.00.96, HTSUS. 23
CONCLUSION
For the foregoing reasons, the court holds that Customs correctly classified the
subject imports. The court denies Plaintiff’s motion for summary judgment and grants
Defendant’s cross-motion for summary judgment. Judgment will be entered accordingly.
/s/ Mark A. Barnett
Mark A. Barnett, Judge
Dated: June 19, 2018
New York, New York
23 Plaintiff makes the assertion that courts have “never, until now, rejected an importer’s
claim to preferential treatment under the Nairobi Protocol” and cites four cases as
support. Pl.’s Mem. at 15 (emphasis in original). Each of the cited cases is
distinguishable and did not concern the legal issue in the present case. In Starkey
Labs, 22 CIT 360, 360-61, 6 F. Supp. 2d 910, 910-11, the parties had stipulated that the
merchandise in question, hearing aid components, was specifically designed or adapted
for the use or benefit of persons suffering from a physical handicap. The sole issue was
whether the components were “parts” that could not be categorized as articles. Id. at
362-63, 912-13. The remaining cases concerned the issue of whether the articles in
question were “therapeutic” articles, and, therefore, excepted from duty-free treatment.
See Richards Med. Co. v. United States, 13 CIT 519, 520, 720 F. Supp. 998, 1000
(1989), aff’d, 910 F.2d 828 (Fed. Cir. 1990); Travenol Labs., Inc. v. United States, 17
CIT 69, 73-74, 813 F. Supp. 840, 844 (1993); Nobelpharma U.S.A. Inc. v. United States,
21 CIT 47, 56, 955 F. Supp. 1491, 1499 (1997) (also considering whether the loss of
natural teeth (edentulism) renders persons physically or mentally handicapped).