CLA-02 RR:CR:SM 563142 EAC
Port Director
Port of Newark/New York
U.S. Customs and Border Protection
C/O Jennifer Tagliaferro
Protest and Control
1100 Raymond Boulevard
Suite 402
Newark, NJ 07102
RE: Protest and Application for Further Review 4601-04-101948; Nairobi Protocol; eligibility of certain walking canes for duty-free treatment under subheading 9817.00.96, HTSUS
Dear Port Director:
The above-referenced protest was forwarded to this office for further review. We have considered the evidence provided with the protest, as well as the points raised by your office and the protestant. Our decision follows.
FACTS:
The case under consideration pertains to certain walking canes that were entered at the U.S. Port of Newark/New York on August 7, 2003. The entry was liquidated on June 18, 2004, and the above-referenced Protest and Application for Further Review was filed on behalf of Harvy Surgical Supply Corp. (hereinafter “protestant”) on September 16, 2004. The protest was, therefore, timely received.
The protestant is a supplier of medical and surgical devices. As noted above, the merchandise under consideration in this particular case consists of various styles of walking canes. The invoice description of some of the canes are: Amber Fischer left handle, black shaft brass Harvy-ring no rubber; Amber Fischer right handle, black shaft brass Harvy-ring no rubber; Derby handle cane with carved right hand grip (unisex), medium scorched with brass band; and, Gents wide Derby handle cane brown, “XL” with brass band. Sample pictures of the canes have been provided. The protestant describes the canes as being of the “standard” variety and further states that the canes are not manufactured or designed for use as fashion accessories. After importation, the protestant markets and sells the canes to surgical supply dealers, pharmacies, and wholesale distributors.
The subject merchandise was liquidated under subheading 6602.00.00, Harmonized Tariff Schedule of the United States (“HTSUS”), which provides for: “Walking-sticks, seat-sticks, whips, riding-crops and the like.” However, the protestant contends that the merchandise should have been liquidated under subheading 9817.00.96, HTSUS, which provides for: “Articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons … Other.”
ISSUE:
Whether the subject merchandise is properly classified under subheading 6602.00.00, HTSUS, or subheading 9817.00.96, HTSUS.
LAW AND ANALYSIS:
The Nairobi Protocol to the Agreement on the Importation of Educational, Scientific and Cultural Materials established 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 United States. The Senate stated in its Report that one of the goals of this law was to benefit the handicapped and show United States 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 specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons" are eligible to receive 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.
In Headquarters Ruling Letter (“HRL”) 556532 dated June 18, 1992, U.S. Customs and Border Protection (“CBP”) considered traditional white and red folding canes for the blind or visually impaired, standard wood and lucite walking canes (one style with a handle similar to the canes under consideration in this case), heavy-duty aluminum adjustable walking canes, tripod and quad canes, a pick-up cane with reacher, forearm crutches, and standard wood and aluminum underarm crutches. In HRL 556532, it was determined that the individuals who utilized the canes and crutches were handicapped persons pursuant to Note 4(a) which includes individuals who have difficulty walking. Therefore, the remaining issue to be resolved was whether some of the canes and crutches were precluded from receiving duty-free treatment under Note 4(b)(i) as articles intended for acute or transient disabilities. Upon consideration of the matter, CBP determined that, even though individuals with acute disabilities (such as sprained ankles, etc.) utilized the canes in some instances, the canes and forearm crutches were of the class or kind predominately used by permanently or chronically handicapped individuals. Therefore, the canes and forearm crutches were eligible to receive duty-free treatment under subheading 9817.00.96, HTSUS. However, CBP also held that, even though crutches may be used by individuals with chronic or permanent disabilities, they are predominantly used by individuals with acute or transient disabilities. As such, the crutches (other than the forearm crutches) were precluded from receiving duty-free treatment under subheading 9817.00.96, HTSUS. See also, HRL 557734 dated April 18, 1994 (upholding and relying on HRL 556532 in a case pertaining to the applicability of subheading 9817.00.96, HTSUS, to certain aluminum folding walkers).
We note that the canes in the instant case appear to be similar to those considered in HRL 556532. The handles of the canes are designed to distribute the weight of the user over the cane’s shaft to ensure maximum stability. Accordingly, it is our opinion that the individuals who utilize the Harvy canes constitute handicapped persons pursuant to Note 4(a) and that the canes are of the variety predominantly used by the chronically and permanently handicapped. Therefore, we find that the Harvy walking canes are eligible to receive duty-free treatment under subheading 9817.00.96, HTSUS.
HOLDING:
Based upon the information before us, we find that the Harvy walking canes under consideration in this case are eligible to receive duty-free treatment under subheading 9817.00.96, HTSUS. Therefore, the protest should be granted in full.
In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the Customs Form 19, 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 make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division