CLA-2 RR:CR:SM 561117 KSG
Area Port Director
U.S. Customs Service
New York/ New Jersey Area
RE: Application for Further Review of Protest No. 1001-98-100370; Nairobi Protocol; articles specifically designed or adapted for the use or benefit of the blind or other physically or mentally handicapped; subheading 9817.00.96, HTSUS; walkers
Dear Sir:
This is in reference to a protest and application for further review filed on behalf of Dr. Leonard’s Healthcare Corporation, contesting the denial of duty-free treatment under subheading 9817.00.96, of the Harmonized Tariff Schedule of the United States (“HTSUS”), to imported four- wheel walkers.
FACTS:
The imported articles included in this protest consists of ten entries of four wheel walkers. The protestant in this case is Dr. Leonard’s Healthcare Corporation, a company that specializes in the health care/disabilities market. The walkers are sold through a mail order catalog called “Dr. Leonard’s America’s Leading Discount Healthcare Catalog.” The walkers have wheels, locking hand brakes, a seat on which to rest, and a basket. The advertisement states that the walkers have great stability.
ISSUE:
Whether the four- wheel walkers are eligible for duty-free treatment under subheading 9817.00.96, HTSUS.
LAW AND ANALYSIS:
The Agreement on the Importation of Educational, Scientific and Cultural Materials, known as the Florence Agreement, is an international agreement drafted by the United Nations Educational, Scientific, and Cultural Organization (UNESCO) and adopted by it in Florence, Italy, in July 1950 (17 UST 1835; TIAS 6129).
It provides for duty-free treatment and the reduction of trade obstacles for imports of educational, scientific, and cultural materials in the interest of facilitating the international free flow of ideas and information. Materials falling within the coverage of the Florence Agreement include: books, publications and documents; works of art and collector’s pieces; visual and auditory materials; scientific instruments and apparatus; and articles for the blind.
The Nairobi Protocol to the Florence Agreement on the Importation of Educational, Scientific, and Cultural Materials Act of 1982 expanded the scope of the Florence Agreement primarily by expanding duty-free treatment for certain articles for the use or benefit of the handicapped in addition to providing duty-free treatment for articles for the blind. The 97th Congress passed Pub. L. 97-446 to ratify the Nairobi Protocol in the U.S. The Senate stated in its Report that one of the goals of this law was to benefit the handicapped and show U.S. support for the rights of the handicapped. The Senate, however, did state that it did not intend “that an insignificant adaptation would result in duty-free treatment for an entire relatively expensive article... the modification or adaptation must be significant so as to clearly render the article for use by handicapped persons.” S. Rep. No. 97-564, 97th Cong. 2nd Sess. (1982). The Senate was concerned that persons would misuse this tariff provision to avoid paying duties on expensive products.
Section 1121 of the Omnibus Trade and Competitiveness Act of 1988 and Presidential Proclamation 5978 provided for the implementation of the Nairobi Protocol by inserting permanent provisions, subheadings 9817.00.92, 9817.00.94, and 9817.00.96 into the HTSUS. These tariff provisions specifically state that “articles specifically 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), 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), chapter 98, HTSUS, states that 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.
The article involved in this case is designed to assist people who have difficulty walking. Walking is listed in U.S. Note 4(a) as a major life activity. Customs has ruled that persons who have difficulty walking or cannot walk on a permanent basis are considered handicapped within the meaning of U.S. Note 4(a). See HRL 556995, dated February 25, 1993, HRL 557712, dated June 27, 1994, HRL 557734, dated April 18, 1994, and HRL 557798, dated June 17, 1994. We find that people who have limited or no ability to walk without assistance on a permanent basis suffer from a permanent or chronic physical impairment which substantially limits a major life activity, without regard to the age of the person.
The second issue presented is whether the rolling walkers are used by persons with acute or transient physical impairments which would preclude the articles from eligibility for duty-free treatment under subheading 9817.00.96, HTSUS, under U.S. Note 4(b). There is a line of Customs cases that consider the question of whether wheelchairs, walkers, canes and crutches are primarily used by persons with acute or transient disabilities as opposed to persons with permanent or chronic physical impairments.
In HRL 556532, dated June 18, 1992, Customs considered the issue of whether the canes and crutches in that case were of a kind or class which are primarily associated with use by the permanently handicapped as opposed to use by individuals with acute or transient disabilities (i.e. sprained ankles, broken legs). Customs determined that the canes at issue and the forearm crutches were of class or kind which are primarily associated with use by the chronically or permanently handicapped, while the crutches at issue in that case were of a class or kind which are used primarily by individuals with acute or transient disabilities. In HRL 557712, dated June 27, 1994, Customs determined that wheelchairs with special design features, although they can be used by persons with acute or transient disabilities, were predominantly used by persons with permanent or chronic physical handicaps. Also see HRL 557798, dated June 17, 1994.
Customs ruled in HRL 556995, dated February 25, 1993, that four styles of wheelchairs and two styles of rolling walkers were designed for long-term use and to provide the maximum mobility, independence and comfort to the users, and therefore, were predominantly used by persons with permanent disabilities. In HRL 557734, dated April 18, 1994, Customs determined that aluminum folding walkers were predominantly used by the chronically and permanently handicapped.
The walkers involved in this case appear to be very similar to the rolling walkers described in HRL 556995. The use of this product by persons with acute or transient disabilities would be unlikely because of the cost of the product and because of the special design features of the product which are intended for long-term use and to provide maximum mobility, independence and comfort to the users (such as the ability to fold the walker up and the seat). Accordingly, we find that this article is predominantly used by persons with permanent or chronic physical handicaps.
The last issue in the instant case is whether the walkers involved in this case are “specially designed or adapted” for the use or benefit of handicapped persons, which is required by the superior text in subheading 9817.00.96, HTSUS. In the memorandum from your port to this office, an argument is made that this article is intended for use by elderly people or people who tire easily, rather than handicapped people.
The meaning of the phrase “specially designed or adapted” has been decided on a case-by-case basis. In HRL 556449, dated May 5, 1992, Customs set forth factors it would consider in making this case-by-case determination. These factors include: 1)the physical properties of the article itself, i.e., whether the article is easily distinguishable, by properties of the design, form, and the corresponding use specific to this unique design, from articles useful to non-handicapped persons; 2) whether any characteristics are present that create a substantial probability of use by the chronically handicapped so that the article is easily distinguishable from articles useful to the general public and any use thereof by the general public is so improbable that it would be fugitive; 3) whether articles are imported by manufacturers or distributors recognized or proven to be involved in this class or kind of articles for the handicapped; 4) whether the articles are sold in specialty stores which serve handicapped individuals; and 5) whether the condition of the articles at the time of importation indicates that these articles are for the handicapped.
The walkers are sold through a health care catalog that would primarily sell to persons with handicaps. Moreover, any use of this product by the general public is very improbable because the walkers are expensive and would only be useful to someone who has great difficulty in walking unassisted. As discussed above, anyone who has great difficulty in walking unassisted on a permanent and chronic basis is considered handicapped under subheading 9817.00.96, HTSUS, without regard to the age of the person. Further, we note that the seat on this product is small and not particularly comfortable for sitting for a long period of time. The main purpose of this product is to assist persons in walking, not to serve as a means by which someone may rest. In our view, someone who merely tires easily and is not permanently handicapped would be extremely unlikely to use this product. Based on the above, we find that the walkers are specially designed or adapted for the handicapped. Accordingly, the imported walkers are entitled to duty free treatment under subheading 9817.00.96, HTSUS.
HOLDING:
The imported four- wheel walkers are entitled to duty-free treatment under subheading 9817.00.96, HTSUS. Accordingly, this protest should be granted in full.
In accordance with Section 3a(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, this decision should be attached to Customs Form 19, Notice of Action, and be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of this decision. Sixty days from the date of this decision, the Office of Regulations and Rulings will take steps to make this decision available to Customs personnel, and to the public via the Customs Home Page on the World Wide Web, the Freedom of Information Act, and other public distribution channels.
Sincerely,
John Durant, Director
Commercial Rulings Division