HQ 0556995 - Application for Further Review of Protest No. 3701-92-1000027; Eligibility under the Nairobi Protocol; specially designed or adapted for the handicapped; wheelchairs; walkers; HRL 556572; HRL 556532; T.D. 92-77 - United States International Trade Commision Rulings

United States International Trade Commision Rulings And Harmonized Tariff Schedule

faqs.org Rulings By Number Rulings By Category Tariff Numbers

faqs.org > Rulings and Tariffs Home > Rulings By Number > 1993 HQ Rulings > HQ 0556734 - HQ 0557035 > HQ 0556995

HQ 556995

February 25, 1993

CLA-2 CO:R:C:S RAH

CATEGORY: CLASSIFICATION

TARIFF NO.: 9817.00.96

District Director
U.S. Customs Service
6269 Ace Industrial Dr.
P.O. Box 37260
Milwaukee, Wisconsin 53110

RE: Application for Further Review of Protest No. 3701-92-1000027; Eligibility under the Nairobi Protocol; specially designed or adapted for the handicapped; wheelchairs; walkers; HRL 556572; HRL 556532; T.D. 92-77

Dear Sir:

This is in response to your memorandum of October 27, 1992, regarding the above referenced protest.

FACTS:

The record reflects that Protest Number 3701-92-1000027 was timely filed on April 27, 1992, concerning an entry encompassing certain wheelchairs and walkers from Sweden. The wheelchairs and walking aids were classified as invalid carriages under subheading 8713.00.00009, Harmonized Tariff Schedule of the United States (HTSUS). The entry was liquidated on March 20, 1992.

Four styles of wheelchairs are listed in the protest: Swede Elite; Swede Sting; Swede F3; and Swede Petite. Two styles of walkers referred to in the protest are the Rollator Nova and the Avant Walking Frame with Basket.

The protestant contends that the wheelchairs and walkers are duty-free under subheading 9817.00.9600, HTSUS (Nairobi Protocol), because they are designed for handicapped people.

ISSUE:

Whether the wheelchairs and walkers are eligible for duty- free treatment under subheading 9817.00.96, HTSUS.

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, HTSUS. 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, HTSUS ("Note 4(a)"), 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, HTSUS ("Note 4(b)") 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.

In the instant case, the pamphlets submitted contain photographs and literature which clearly indicate that the wheelchairs and walkers are "specially designed or adapted" for persons with permanent disabilities. It is apparent that they are designed for long-term use and to provide the maximum mobility, independence and comfort to the user.

The Swede Sting is a child's chair described as a wheelchair with high performance and durability, combined with individual adjustments to meet the changing needs of the growing child. The Swede Elite is characterized as a wheelchair conceived especially for those who want to lead an active, independent life but have so far been unable to find the model that exactly matches their needs. The Swede Petite is listed as a chair which grows with the child, its design not only ensures correct posture and maximum mobility, it also reflects the child's own identity, independence and self respect. Lastly, the Swede F3 is described as being the result of six years of development, is based on ergonomic principles and movement patterns of different disability and age groups with the result being that it can easily be adjusted to create the best sitting position, increase body activity, and maximize propelling possibilities of each individual.

With regard to the walkers, the Rollator Avant is referred to as a "constant companion." The Nova is described as a great step forward on walking aids designed to be more useable and mobile and to meet the varied needs of its user. Nova is "stylish-instead of clinical." We recently issued a decision in which we held that rolling walkers were eligible for duty-free treatment under subheading 9817.00.96, HTSUS, because they are predominantly used by persons with permanent or chronic disabilities, notwithstanding the fact that they might be utilized in some cases by persons with only a temporary impairment. Headquarters Ruling Letter (HRL) 556572 dated February 18, 1993. Furthermore, in HRL 556532 dated June 18, 1992, we held that a walk-a-cane is very similar to a walker which is clearly associated as for the chronically handicapped. In that case, we held that while individuals with acute disabilities such as sprained ankles, etc., often utilize canes, the canes and forearm crutches at issue were predominately used by permanently or chronically handicapped individuals.

In this case, as in HRLs 556572 and 556532, we find that although it is possible that persons suffering acute disability could use the wheelchairs or walkers in question, based on their unique design illustrated in the pamphlets, there is a substantial probability that they are fashioned for and will be used by the chronically handicapped. Accordingly, we further find that the individuals who utilize the wheelchairs and walkers would constitute handicapped persons under Note 4(a) which defines that term as including those individuals who have difficulty walking. The articles clearly are specially designed to enable the handicapped to adapt to their disability.

HOLDING:

The wheelchairs and walkers are articles specially designed or adapted for the handicapped. Therefore, they are eligible for duty-free treatment under subheading 9817.00.96, HTSUS. Accordingly, the protest should be granted in full. A copy of this decision should be attached to the Form 19, Notice of Action, to be sent to the protestant.

Sincerely,

John Durant, Director

Previous Ruling Next Ruling

See also: