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HQ 557734


April 18, 1994

CLA-2 CO:R:C:S 557734 MLR

CATEGORY: CLASSIFICATION

TARIFF NO.: 9817.00.96

Mr. David H. McKenney
Amrin, Inc.
38 Humbolt Ave.
Providence, RI 02906

RE: Eligibility under the Nairobi Protocol; specially designed or adapted for the handicapped; walkers; canes; probability of general public use

Dear Mr. McKenney:

This is in reference to your letter of September 8, 1993, forwarded by the Chief, New York Seaport, requesting a ruling regarding the applicability of subheading 9817.00.96, Harmonized Tariff Schedule of the United States (HTSUS), to an aluminum folding walker ("walker"). A photograph was submitted with the request.

FACTS:

The article at issue is an aluminum folding walker, consisting of two inverted "U" shape tubes with connecting and holding bars in the middle, thus forming a four legged walking and standing support.

ISSUE:

Whether the aluminum folding walker is "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, 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, 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, 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 Headquarters Ruling Letter (HRL) 556532 dated June 18, 1992, Customs considered traditional white and red folding canes for the blind or visually impaired, standard wood and lucite walking canes, heavy-duty aluminum adjustable walking canes, tripod and quad canes, a pick-up cane with reacher, forearm crutches, and standard wood and aluminum underarm crutches. First, it was determined that the individuals who utilize the canes and crutches are handicapped persons under Note 4(a) which includes those individuals who have difficulty walking. Therefore, the primary issue was whether some of the canes and crutches were precluded from duty-free treatment under Note 4(b)(i) because they are articles for acute or transient disabilities. Customs took the position that while individuals with acute disabilities such as sprained ankles, etc., may utilize the canes, the canes and forearm crutches were of the class or kind which are predominately used by permanently or chronically handicapped individuals. However, in regard to the crutches, Customs took the position that although they may be used by individuals with chronic or permanent disability, they are predominately used by individuals with an acute or transient disability, and therefore, were precluded from duty-free treatment under the Nairobi Protocol.

In HRL 556532, Customs considered HRL 556449 dated May 5, 1992, where Customs enunciated the principle of "probability of general public use" used in determining what constitutes "specially designed or adapted" within the meaning of the Nairobi Protocol. See also T.D. 92-77. This principle involves the consideration of various factors on a case-by-case basis. 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 its unique design, from articles useful to non-handicapped individuals. Also, design factors such as the utilization of angles in articles normally of straight design were found to be common with articles associated with the handicapped. The physics of leverage provided by the design to compensate for weakness and lack of dexterity was another factor considered. These "specific design" factors were considered in conjunction with those factors discussed in HRL 074191 dated December 13, 1984. The factors discussed in HRL 074191 include:

(1) whether the articles shows by design features that it is specially adapted to particular needs of the chronically handicapped; (2) whether the design of the article may nearly equally suit the article for use by persons with transient or acute disability; (3) whether any characteristics are present that create a substantial probability of use by the chronically handicapped (as opposed to persons with transient or acute disabilities), and (4) 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.

The "probability of general public use" principle also includes an evaluation of convenience. Lastly, HRL 556449 also considered other factors for determining whether an article is "specially designed or adapted" for the handicapped: (1) whether articles are imported by manufacturers or distributors recognized or proven to be involved in this class or kind of articles for the handicapped; (2) whether the articles are sold in specialty stores which serve handicapped individuals; and (3) whether the condition of the articles at the time of importation indicate that these articles are for the handicapped. However, it was determined that each of these factors still must be weighed against the other factors mentioned above. See HRL 556135 dated September 10, 1991 and HRL 087625 dated November 1, 1990.

Consequently, because HRL 556532 considered the "probability of general public use" enunciated in HRL 556449 which made reference to HRL 074191, it is our opinion that HRL 556532 is applicable to the facts of this case. Moreover, in HRL 556995 dated February 25, 1993, Customs considered walkers with wheels and a basket to be eligible for duty-free treatment under subheading 9817.00.96, HTSUS, based on HRL 556532 where it was determined that a walk-a-cane is very similar to a walker which is clearly associated for with the chronically handicapped. Furthermore, HRL 556995 upheld the position taken in HRL 556532 that although individuals with acute disabilities such as sprained ankles, etc., could use the walkers, there was a substantial probability that they are fashioned for and will be used by the chronically handicapped.

It is, therefore, our opinion that although the aluminum folding walker may be used by persons suffering acute disability, they are predominately used by the chronically and permanently handicapped. Accordingly, we further find that the individuals who utilize the walkers would constitute handicapped persons under Note 4(a) which defines that term as including those individuals who have difficulty walking, and the walker is specially designed to enable the handicapped to adapt to their disability.

HOLDING:

Based on the information submitted, the aluminum folding walker is considered to be an article specially designed or adapted for the handicapped, and therefore, eligible for duty-free treatment under subheading 9817.00.96, HTSUS.

Sincerely,


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