CLA-2 CO:R:C:S 557712 BLS
District Director of Customs
P.O. Box 3130
Laredo, Texas 78044-3130
RE: Application for Further Review of Protest No. 2304-
93-10011; eligibility of wheelchairs for duty-free
treatment as articles for the handicapped under the
Nairobi Protocol
Dear Sir:
This is in reference to an Application for Further Review of
the above-captioned matter, timely filed by counsel on behalf of
Invacare Corporation, concerning the eligibility of certain
wheelchairs for duty-free entry under subheading 9817.00.96,
Harmonized Tariff Schedule of the United States (HTSUS). Your
office has classified the wheelchairs as invalid carriages under
subheading 8713.00.00009, HTSUS.
FACTS:
The subject wheelchairs covered by this protest are the "World
Chair", the "Rolls 1000", and the "Series 1000 E" (now identified
as the "Tracer" and "Tracer Plus" models). Literature describing
the wheelchairs has been submitted. Certain features common to
each of the chairs include quad releases on swinging leg riggings
and/or legrests and removable stainless steel clothing guards.
The "World Chair" and "Rolls 1000" models also have as standard
features a quad release mechanism for the arm riggings. (The quad
release feature is explained in the submission as a device to
permit an individual with permanent arthritis or who is paralyzed
and doesn't have dexterity in his/her fingers to release the
locking mechanism on the legrests, footrests, or armrests, with the
club of his/her hand.) Some of the models may have removable arms.
Counsel has orally advised that the wheelchairs in their condition
as imported include all features described in the brochures as
standard (including the quad release and stainless steel guards).
The brochures place primary emphasis on the chairs' comfort,
durability, low maintenance, and rollability.
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ISSUE:
Whether the wheelchairs 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. Presidental Proclamation 5978 and section 1121 of the
Omnibus Trade and Competitive 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 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)"), provides 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." However, U.S.
Note 4(b)(i) provides that subheading 9817.00.96, HTSUS, does not
cover "articles for acute or transient disability".
In Headquarters Ruling Letter (HRL) 556532 dated June 18,
1992, the specific issue was whether certain canes and crutches
used by physically handicapped individuals were precluded from
duty-free treatment because they were utilized by persons with
acute disabilities, such as sprained ankles, as well as persons
with permanent and chronic disabilities. In that case, we found
that since the canes and forearm crutches were predominately used
by individuals with chronic and permanent disabilities, they were
"specially designed or adapted" within the meaning of the Nairobi
Protocol. (See also HRL 557734 dated April 18, 1994, where we held
that although aluminum folding walkers could also be used by
persons suffering acute disability, they were predominately used
by individuals with permanent or chronic handicaps.)
In determining predominant use in this case, we must consider
the physical properties of the article, i.e., whether the article
is easily distinguishable by its design and the corresponding use
specific to its unique design, from articles useful to non-
handicapped individuals or individuals with acute or transient
disabilities. Design factors commonly associated with articles for
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the handicapped include the utilization of angles in articles which
are normally of straight design, and the use of physics of leverage
to compensate for weakness and lack of dexterity. See HRL 556449
dated May 5, 1992.
Customs has also considered other factors in determining
whether an article is "specially designed or adapted" for the
handicapped: 1) The probability of general public use; 2) whether
the article is imported by a manufacturer or distributor recognized
to be involved in the class or kind of articles for the
handicapped; 3) whether the article is sold in a specialty store
which serves handicapped individuals; and 4) whether the condition
of the article at the time of importation indicates that it is for
the handicapped. See T.D. 92-77 (26 Cust. Bull. 1, August 26,
1992.) Each of these factors is to be weighed against each other
on a case-by-case basis to determine whether an article is
"specially designed or adapted" within the meaning of the statute.
In HRL 557798 dated June 17, 1994, we found that while certain
wheelchairs could also be used by persons with acute or transient
disabilities, they were predominately used by individuals with
permanent or chronic disabilities. Each of the wheelchairs in that
case similarly had a quad release, as well as detachable (as
opposed to fixed) front riggings, which designs we noted would not
usually be found in wheelchairs used by persons with acute or
transient disabilities for temporary use only. The literature for
those wheelchairs also emphasized comfort, durability, and
convenience of the various models. (See also HRL 556995 dated
February 25, 1993, where we noted that the design of the
wheelchairs under review was based on ergonomic principles and
movement patterns of different disabilities and age groups, which
allowed for various adjustments to achieve the best sitting
position, and to increase body activity. The chairs were also
described (in the literature) as extremely durable with high
performance features. Based on their unique design, we found that
there was a substantial probability that they were fashioned for
and would be used by the chronically handicapped.)
We find that the subject wheelchairs are also "specially
designed or adapted" for the use of the handicapped. The
literature emphasizes the chairs' comfort, durability, low
maintenance and superior roll performance. In particular, we note
that all models include as standard features a quad release and
swingaway front riggings, designs which we find are intended for
the permanently disabled.
Under these circumstances, while we also find that these
wheelchairs can be used by persons with acute or transient
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disabilities, they were clearly designed for, and are predominantly
used by, persons with permanent or chronic physical handicaps.
HOLDING:
The wheelchairs are articles specially designed or adapted for
the handicapped. Therefore, they are eligible for duty-free
treatment under subheading 9817.00.96, HTSUS.
In accordance with Section 3A(11)(b) of Customs Directive 099
3550-065, dated August 4, 1993, Subject: Revised Protest Directive,
this decision should 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 the decision. Sixty days from the date of the
decision the Office of Regulations and Rulings will take steps to
make the decision available to customs personnel via the Diskette
Subscription Service, Lexis, Freedom of Information Act and other
public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division