CLA-2 RR:TC:SM 559416 BLS
Mr. Ingvar Carlson
Sales Manager, Activan Division
Ricon Corporation
12450 Montague Street
Pacoima, CA 91331
RE: Eligibility of "Activan" for duty-free treatment under the Nairobi Protocol;
subheading 9817.00.96, HTSUS
Dear Mr. Carlson:
This is in reference to your letter dated August 28, 1995, requesting a ruling with regard to the tariff treatment of Chrysler and Ford mini-vans, to be exported to Canada and then returned after being modified for use for the handicapped.
FACTS:
The brochure enclosed with the request describes Ricon as a manufacturer of "mobility equipment," and reflects that the company is in the business of providing such equipment to handicapped individuals. The pictorial display on the front of the brochure shows a handicapped individual in a wheelchair on a ramp leading up into the interior of the van.
Standard equipment on the van includes the following:
- Lowered floor with rust proofing
- Slip resistant flooring
- Swing-away manual ramp
with gas shock assist
- Removable passenger seat base
- 4-point wheelchair tie-down
with occupant restraint
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Optional equipment offered on the Activan includes grab handles, removable driver's seat base, raised sliding door, and powered ramp.
ISSUE:
Whether the "Activan", with standard equipment, 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, Harmonized Tariff Schedule of the United States (HTSUS).
LAW AND ANALYSIS:
The Nairobi Protocol to the Agreement on the Importation of Educational, Scientific, and Cultural Materials Act of 1982, established 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 provide that "[a]rticles specially designed or adapted for the use or benefit of the blind or handicapped persons" are eligible for duty-free treatment.
U.S. Note 4(a), subchapter XVII, Chapter 98, HTSUS, provides that "[t]he 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 these products, provides 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
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(iv) medicine or drugs.
In Headquarters Ruling Letter (HRL) 556449 dated May 5, 1992, Customs articulated the principle of "probability of general public use" used in determining whether an article is "specially designed or adapted" within the meaning of the Nairobi Protocol. The following factors were considered to be relevant in making this determination: 1) whether any characteristics are present that create a substantial probability of use by the chronically handicapped; 2) whether the article is easily distinguishable from articles useful to the general public; 3) whether use of the article by the general public is so improbable that such use would be fugitive; 4) whether use of the articles by the general public would be inconvenient; 5) whether articles are imported by manufacturers or distributors recognized or proven to be involved in this class or kind of articles for the handicapped; 6) whether the articles are sold in speciality stores which serve handicapped individuals; and 7) whether the condition of the articles at the time of importation indicate that these articles are for the handicapped. See also T.D. 92-77 (26 Cust. Bull. 1, August 26, 1992), HRL 556135 dated September 10, 1991 and HRL 087625 dated November 1, 1990.
In evaluating the convenience factor, for example, Customs found in HRL 556449 that the use of a fork with a clamp, whereby individuals place food needed to be cut on the end of a fork to the side of a plate for one hand cutting, would be very inconvenient for non-handicapped individuals, and therefore was considered to be specially designed or adapted for the handicapped. On the other hand, duty-free treatment was precluded for a two-handed mug, which was designed with a low center of gravity and a corresponding top to help reduce spillage, since this article was commonly used by children and the design was common in travelling mugs used by the general public.
In the instant case, the van is modified in Canada with various features specifically designed to adapt it for use by individuals with a permanent and chronic disability, and the manufacturer (and seller) is a company which is widely recognized as providing articles for the handicapped. While the vehicle is also intended to accomodate non-disabled individuals, either as driver or passengers, the special design features make it highly unlikely that the Activan would be acquired other than for the benefit or use of an individual with a permanent and chronic disability. Accordingly, it is our opinion that although the Activan will also accomodate non-disabled individuals, it is specifically designed for and will be predominantly used by or for the benefit of the chronically and permanently handicapped.
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HOLDING:
The "Activan" is considered to be an article specially designed or adapted for the handicapped. Therefore, provided the vehicle is offered for sale in the same condition as imported, it will be eligible for duty-free treatment under subheading 9817.00.96, HTSUS.
A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.
Sincerely,
John Durant, Director
Tariff Classification Appeals Division