CLA-2 CO:R:C:S 556532 SER
Mr. Donald L. Mann
Duro-Med Industries, Inc.
301 Lodi Street
Hackensack, NJ 07602
RE: Eligibility under the Nairobi Protocol; specially designed
or adapted for the handicapped; acute or transient
disabilities; crutches, canes, quad canes; HRL 555537,
556449
Dear Mr. Mann:
This is in reference to your letter of January 13, 1992, to
our New York office concerning the classification of various
canes, quad canes, and crutches and the eligibility of these
articles for duty-free treatment under subheading 9817.00.96,
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA). The classification of the articles was addressed in
New York Ruling Letter 870796 dated February 14, 1992. The issue
of eligibility under subheading 9817.00.96, HTSUSA, was referred
to this office for a response.
FACTS:
The articles at issue consist of a wide variety of canes,
crutches, and crutch accessories. In addition, some articles in
the submitted catalog are for use in the retail sale of these
items, e.g., display racks.
Some examples of the articles at issue are: traditional
white and red folding canes for the blind or visually impaired,
standard wood and lucite walking canes, heavy-duty aluminum
adjustable walking canes, tripod and quad canes, pick-up cane
with reacher, forearm crutches, and standard wood and aluminum
underarm crutches. The accessories consist of rubber hand grips,
pads, and tips to be used with the standard crutches.
ISSUE:
Whether the various articles are eligible for duty-free
treatment under subheading 9817.00.96, HTSUSA.
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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. 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, HTSUSA. These tariff
provisions specifically state 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, HTSUSA ("Note
4(a)"), 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), subchapter XVII, Chapter 98, HTSUSA ("Note
4(b)") which establishes limits on classification of products in
these subheadings, states 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
(iv) medicine or drugs.
Individuals who utilize the canes and crutches at issue
would constitute handicapped persons under Note 4(a) which
includes those individuals who have difficulty walking. The
various crutches and canes clearly are specially designed to
enable the handicapped to adapt to their disability. In
addition, the traditional white and red walking canes used by
blind individuals to enable them to guide themselves while
walking, have previously been determined to be eligible for duty-
free treatment under subheading 9817.00.96, HTSUSA. See
Headquarters Ruling Letter (HRL) 555537 dated August 10, 1990.
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The primary issue in this case is whether the remaining
canes and crutches are precluded from duty-free treatment under
Note 4(b)(i) which provides that the subheadings implementing the
Nairobi Protocol do not cover articles for individuals with acute
or transient disabilities.
The majority of canes and the forearm crutches at issue are
of the class or kind which are primarily associated with use by
the chronically or permanently handicapped. For example, the
walk-a-cane is very similar to a walker which is clearly
associated as for the chronically handicapped. While individuals
with acute disabilities such as sprained ankles, etc., often
utilize canes, it is our position that the canes and forearm
crutches at issue are predominately used by permanently or
chronically handicapped individuals.
Although some styles of canes are utilized as fashion
accessories, the canes at issue appear to be constructed in a
manner which represents function over form. While the canes may
have a "stylish, attractive permanized finish", they are not the
decorative type such as the class or kind of canes with ivory
tops, etc. It should be noted that there is no restriction on
articles for the handicapped being "stylish". However, if style
dominates as the essential character of the article, this is a
significant indication that it is not an article for the
handicapped.
The crutches at issue, excluding the forearm crutches, are
of the class or kind which are used by individuals with acute or
transient disabilities. While some individuals with chronic or
permanent disabilities may use these crutches, it is our position
that they are predominately used by individuals who have
sustained disabilities such as sprained ankles, a broken foot,
etc, and, therefore, these crutches would be precluded from
receiving duty-free treatment under the Nairobi Protocol. In
addition, since the crutches at issue are not eligible for duty-
free treatment under subheading 9817.00.96, HTSUSA, the crutch
accessories also would not receive duty-free treatment.
The "Duro-Matic Cane Seat" at issue is also not eligible for
duty-free treatment. It is not an article specially designed or
adapted for the use or benefit of the handicapped within the
meaning of the statute. In HRL 556449 dated May 5, 1992, Customs
enunciated the principle of "probability of general public use"
to be used in determining what constitutes "specially designed or
adapted" within the meaning of the Nairobi Protocol. The "Duro-
Matic Cane Seats" are of the class or kind of folding seats
generally used by the general public, primarily at outdoor
events. Furthermore, the display racks at issue are clearly not
specially designed or adapted for the use or benefit of the
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handicapped as they are clearly for the use of those who sell
various articles. Therefore, the display racks would not receive
duty-free treatment under the Nairobi Protocol.
HOLDING:
The canes and forearm crutches are articles specially
designed or adapted for the handicapped and are not precluded by
Note 4(b) as articles for individuals with acute or transient
disabilities. Therefore, they are eligible for duty-free
treatment under subheading 9817.00.96, HTSUSA. The crutches
(other than the forearm crutches), crutch accessories, "Duro-
Matic Cane Seat" and display racks are not eligible for duty-free
treatment under subheading 9817.00.96, HTSUSA.
Sincerely,
John Durant, Director
Commercial Rulings Division