CLA-2 CO:R:C:S RAH
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