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).


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.)


The Nairobi Protocol to the Agreement on the importation of Educational, Scientific, and Cultural Materials Act of 1982,

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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

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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.


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.


John Durant, Director
Commercial Rulings Division