CLA-2 CO:R:C:S 557798 BLS
Area Director of Customs
6 World Trade Center
New York, New York 10048-0945
RE: Application for Further Review of Protest No. 1001-93-10013;
eligibility of certain wheelchairs for duty-free entry under
subheading 9817.00.96, HTSUS
Dear Sir:
This is in reference to your memorandum dated July 19, 1993,
forwarding an Application for Further Review of the above-captioned
protest, timely filed by Kareco International, Inc., concerning the
eligibility of certain wheelchairs for duty-free entry under
subheading 9817.00.96, Harmonized Tariff Schedule of the United
States (HTSUS).
FACTS:
The imported wheelchairs consist of Model R806-10-S-18, of the
"Rough Rider" series, and Models K804, and K806-809, of the
"Klassic-Lite" series. Features of Model R806-10-S-18 include
detachable and swingaway front riggings (as opposed to fixed front
riggings), quad releases (for the front riggings and detachable
arms, where applicable), elevated foot rests, heel loops, and steel
seat guides. (A "quad release" mechanism permits the user who may
have limited dexterity in his/her fingers to unlock the front
riggings and/or detachable arms with one hand only; features of the
"Klassic-Lite" chairs, in general, include a stainless steel frame
and side panels, detachable and swingaway front riggings, and a
quad release. Model K806 also has elevated leg rests; model K807
has detachable arms; model K808 has a detachable desk arm; and
model K809 has a detachable desk arm and elevated legs.
(Detachable desk arms permit a closer approach to tables or desks,
as well as permit easier transfers to or from the wheelchair.)
LAW AND ANALYSIS:
The Nairobi Protocol to the Agreement on the importation of
Educational, Scientific, and Cultural Materials Act of 1982,
- 2 -
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 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, provides
that the term 'blind or other physically or mentally hendicapped
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),
subchapter XVII, Chapter 98, HTSUS, provides in pertinent part that
subheadings 9817.00.92, 9817.00.94, and 9817.00.96, do 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 persons 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
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 prabability of general public use; 2) Whether
articles are imported by manufacturers or distributors recognized
- 3 -
or proven to be involved in this class or kind of articles for the
handicapped; 3) whether the articles are sold in specialty stores
which serve handicapped individuals; and 4) whether the condition
of the articles at the time of importation indicates that these
articles are 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 556995 dated February 25, 1993, we determined that
certain wheelchairs and walkers were "specially designed or
adapted" for persons with permanent disabilities. In connection
with the wheelchairs, the information submitted emphasized that
their design allowed for individual adjustments for best seating
position, increase of body activity, and maximization of propelling
possibilities for each individual. We found that although it was
possible for persons with acute disabilities to use the
wheelchairs, based on their unique design, there was a substantial
probability that they were fashioned for and would be used by the
chronically handicapped.
Similarly, as described, above, the literature submitted in
connection with the wheelchairs in question emphasizes comfort,
durability, convenience, and certain other design features. In
particular, all of the models in question have detachable front
riggings and quad releases, designs which we find are intended for
the permanently disabled. We believe that these features would not
usually be found in wheelchairs used by individuals with acute or
transient disabilities for temporary use only. While we recognize
that hospitals may use wheelchairs with detachable arms for persons
with acute or transient disabilities, in order to facilitate
transfers to and from hospital beds, the issue which we must
address is one of predominant use.
Accordingly, while we find that the subject wheelchairs may
also be used by persons with acute or transient disabilities, it
is our opinion that they are predominantly used by the chronically
and permanently disabled. We further find that the individuals who
utilize the wheelchairs would constitute handicapped persons under
Note 4(a) which defines that term as including those individuals
who have difficulty walking, and the wheelchair is specially
designed to enable the handicapped to adapt to their disability.
HOLDING:
Based on the information submitted, the subject wheelchairs
are considered to be articles specially designed or adapted for the
handicapped. Therefore, the wheelchairs are eligible for duty-
free - 4 -
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. 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