CLA-2 RR:CR:SM 561020 KSG
Area Port Director
U.S. Customs Service
Providence, Rhode Island
RE: Application for Further Review of Protest No. 0502-97-100013; Nairobi Protocol; articles specifically
designed or adapted for the use or
benefit of the blind or other physically or mentally
handicapped; subheading 9817.00.96, HTSUS;
diabetes
Dear Sir:
This is in reference to a protest and application for
further review filed by Medport Inc., contesting the denial
of duty free treatment under subheading 9817.00.96, of the
Harmonized Tariff Schedule of the United States ("HTSUS"),
to imported diabetes organizers and mobility organizers.
FACTS:
The imported articles included in this protest are
eight different products involving two lines of merchandise.
The first line of merchandise consists of diabetes
organizers. The second line of merchandise consists of
mobility organizers. The protestant in this case is
Medport, Inc., a company that specializes in the health
care/ disabilities market. We are informed that Medport
worked with focus groups, pharmacists, other health care
experts and people with disabilities to develop products
that would meet the specialized needs of disabled people.
Both these lines are sold over the counter in
drugstores and medical supply stores, as well as by mail.
The diabetes organizers are advertised in two specialized
publications dealing with issues of interest to people with
diabetes. The diabetes organizers have specialized features
such as separate compartments equipped with a plastic mini
ice pack for the purpose of maintaining insulin at the
proper temperature, and another compartment containing
elastic straps to hold syringes and insulin bottles,
temperature devices and pockets to hold a meter. The
diabetes organizers are sold in sleeves that advertise the
product as designed for a person with diabetes in large bold
lettering. The protest involves three diabetes organizers:
styles 10006, 10007 and 10008.
Style 10006 is called the wallet organizer. It is a
zippered case that measures 7 3/4" x 3 3/4" x 3/4". The
wallet organizer is designed to carry up to three syringes
for insulin and two insulin bottles. The organizer has a
center divider that creates two compartments. One
compartment contains elastic straps that hold the syringes
and insulin bottles. The other compartment has a vinyl
pocket that holds a freezable mini ice pack.
Style 10007 is called the daily organizer. It measures
6.75" x 5.5" x 2.5". It is designed to hold enough insulin
and related supplies to last up to three days. It also has
two compartments, elastic straps to hold syringes and
insulin, a log book, a zippered pocket designed to hold a
meter, and a clear plastic pouch designed to hold syringes
and insulin. The other compartment is designed to hold
insulin, a plastic mini ice pack, and a plastic pouch.
Style 10008 is called the travel organizer. It
measures 9" x 6" x 2.5". It is designed to hold enough
insulin and related supplies for up to two weeks. It also
has two compartments: a cool side with two plastic mini ice
packs and a room temperature side designed to hold a meter,
supplies and a detachable plastic waste pouch.
The other line, the mobility organizers, consists of
five styles: styles 30001, 30002, 30003, 30004, and 30005.
You state that the mobility organizers are designed
specifically for persons with chronic ambulatory
impairments. These products are packaged in cardboard boxes
which indicate that the articles are for use with products
like walkers, wheelchairs, canes or crutches.
Style 30001 is called the fold-away carrypak for
walkers and wheelchairs. It is nylon and measures 15" x 11"
x 9". It has three straps so that it can be attached to a
walker or wheel chair. This product would not be usable as
a backpack because the straps are too short and
inconveniently placed for carrying by an individual. It
also has no flap that would allow it to be closed. There is
one large main compartment as well as outside pockets that
could be used to carry various items. It has panels that
give it more strength so that it can be used to carry
heavier items.
Style 30002 is called a carrypak for canes and
crutches. It is nylon and measures 10" x 5 1/2" x 1 3/4".
It is designed to be attached to a cane or crutches by means
of a slip proof hook and loop system. It has a main storage
compartment pocket, a beverage holder and pockets for pens.
Style 30003 is called a carrypak for walkers. It is
nylon and measures 14" x 12" x 2". It has three straps that
allow it to be attached to center crossbar walkers. It has
a main compartment and exterior pockets that could be used
to carry items. This product also has an adjustable
shoulder strap that would allow it to be carried by a
person.
Style 30004 is called a carrypak for wheelchairs. It
is nylon and measures 12 1/2" x 14" x 5". It has two
circular straps that attach to the back handles of
wheelchairs. It would not be usable as a backpack since it
would be unbalanced and would not fit on a person's back.
Style 30005 is called a carrymate for canes and
crutches. It is designed to be attached to a cane or
crutches by means of a slip proof hook and loop system. It
stays gripped to the cane, walker, or crutch because of its
tread- like construction. It has a loop that is designed to
hold keys and a jacket or gloves.
ISSUE:
Whether the three diabetes organizers and the five
mobility organizers are eligible for duty-free treatment
under subheading 9817.00.96, HTSUS.
LAW AND ANALYSIS:
The Agreement on the Importation of Educational,
Scientific and Cultural Materials, known as the Florence
Agreement, is an international agreement drafted by the
United Nations Educational, Scientific, and Cultural
Organization (UNESCO) and adopted by it in Florence, Italy,
in July 1950 (17 UST 1835; TIAS 6129).
It provides for duty-free treatment and the reduction
of trade obstacles for imports of educational, scientific,
and cultural materials in the interest of facilitating the
international free flow of ideas and information. Materials
falling within the coverage of the Florence Agreement
include: books, publications and documents; works of art and
collector's pieces; visual and auditory materials;
scientific instruments and apparatus; and articles for the
blind.
The Nairobi Protocol to the Florence Agreement on the
Importation of Educational, Scientific, and Cultural
Materials Act of 1982 expanded the scope of the Florence
Agreement primarily by expanding 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 U.S. The Senate stated
in its Report that one of the goals of this law was to
benefit the handicapped and show U.S. 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 specifically 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), Chapter 98, HTSUS ("U.S. 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), Chapter 98, HTSUS ("U.S. Note 4(b)"),
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.
People who suffer from kidney failure are considered
"handicapped." See Travenol Laboratories, Inc. v. United
States, 813 F. Supp. 840 (CIT 1993), and HRL 559120, dated
October 20, 1995. Customs ruled in HRL 556090, dated
November 8, 1991, that individuals who suffer from chronic
arthritis, scoliosis, severe hernia problems and post-polio
syndrome and who need heavy-duty support corsets are
"handicapped" within the meaning of this provision because
without the corsets, they are substantially limited in their
ability to walk and perform manual tasks. Individuals who
suffer from chronic incontinence are considered
"handicapped" because this condition can interfere with
working. See HRL 960056, dated January 30, 1997.
Section 3 of the Americans with Disabilities Act of
1990 ("ADA"), 42 U.S.C. 12102(2) defines a disability as "a
physical or mental impairment that substantially limits one
or more of the major life activities of such individual."
Because this definition uses language similar to the
definition
set forth above in U.S. Note 4(a), chapter 98, HTSUS, it is
instructive to examine the case law under the ADA. The
federal courts have held that diabetes substantially limits
one or more of the major life activities of an individual.
See Canon v. Clark, 883 F. Supp. 718 (S.D. Fla. 1995),
Sarsycki v. United Parcel Service, 862 F. Supp. 336 (W.D.
Okla. 1994), and EEOC v. The Chrysler Corporation, 917 F.
Supp. 1164 (E.D. Mich. 1996). In the Chrysler Corporation
case, the District Court ruled that an industrial
electrician who suffered from diabetes was disabled within
the meaning of the ADA because he had an impairment which
significantly restricted his ability to perform either a
class of jobs or a broad range of jobs in various classes.
As discussed in the cases above, people with diabetes
are limited in their ability to perform a broad range of
jobs because they must be able to monitor their blood sugar,
inject insulin if prescribed, and have work restrictions due
to excessive urination, possible nausea, dizziness and
fainting. Like chronic incontinence, this interferes with
working-- a major life activity. Therefore, persons with
diabetes suffer from a permanent or chronic physical
impairment which substantially limits a major life activity
and therefore, are considered physically handicapped persons
under U.S. Note 4(a).
In Headquarters Ruling Letter ("HRL") 556532, dated
June 18, 1992, Customs ruled that persons who use canes and
forearm crutches are handicapped persons under U.S. Note
4(a) which includes individuals who have difficulty walking.
Further, Customs has held that persons who use walkers and
wheelchairs are handicapped persons under U.S. Note 4(a).
See HRL 557712, dated June 27, 1994, HRL 557734, dated April
18, 1994, HRL 557798, dated June 17, 1994, and HRL 556995,
dated February 25, 1993. Accordingly, we find that people
who have limited or no ability to walk without assistance
suffer from a permanent or chronic physical impairment which
substantially limits a major life activity and therefore,
are also considered physically handicapped persons under
U.S. Note 4(a).
The last issue is whether the eight products involved
in this case are "specially designed or adapted" for the use
or benefit of handicapped persons, which is required by the
superior text in subheading 9817.00.96, HTSUS.
The meaning of the phrase "specially designed or
adapted" has been decided on a case-by-case basis. In HRL
556449, dated May 5, 1992, Customs set forth factors it
would consider in making this case-by-case determination.
These factors include: 1)the physical properties of the
article itself, i.e., whether the article is easily
distinguishable, by properties of the design, form, and the
corresponding use specific to this unique design, from
articles useful to non-handicapped persons; 2) whether any
characteristics are present that create a substantial
probability of use by the chronically handicapped so that
the article is easily distinguishable from articles useful
to the general public and any use thereof by the general
public is so improbable that it would be fugitive; 3)
whether articles are imported by manufacturers or
distributors recognized or proven to be involved in this
class or kind of articles for the handicapped; 4) whether
the articles are sold in specialty stores which serve
handicapped individuals; and 5) whether the condition of the
articles at the time of importation indicates that these
articles are for the handicapped.
Customs has held that a two-handed mug, a nail file
with a lightweight handle and pen with a wide base have a
general public use; therefore, these articles were not
considered specially designed or adapted for the
handicapped. A bedside toilet, a plate with a raised edge,
a potato peeler designed for one- handed use, and a shower
stool were determined to be specially designed or adapted
for the handicapped.
In this case, we have examined the samples and
literature prepared by Medport and find that the three
diabetes organizers have distinctive design features, and
characteristics which easily distinguish them from articles
useful to the general public so that any use thereof by the
general public would be so improbable that it would be
fugitive. Examples of these distinctive features are: the
separate cool compartment for insulin, the elastic straps
for insulin bottles and syringes, compartments for meters,
items to measure temperature and a detachable medical waste
pouch. Further, Medport has stated that it primarily sells
these products in specialized sections of drugstores, by
mail, and it advertises the products in specialized
publications targeted to people with diabetes. We also
note that Medport specializes in the health care area and
specifically, with articles for people with diabetes. We
find that the three diabetes organizers are specially
designed or adapted for the use or benefit of handicapped
persons and are entitled to duty-free treatment under
subheading 9817.00.96, HTSUS.
The mobility organizers involved in this case are
designed to be used with wheelchairs, walkers, canes and
crutches. While Customs has not specifically ruled on such
organizers, there is a line of cases dealing with the
eligibility of the wheelchairs, walkers, canes and crutches
for duty free treatment under subheading 9817.00.96. In HRL
556532, dated June 18, 1992, Customs considered the issue of
whether the canes and crutches in that case were of a kind
or class which are primarily associated with use by the
permanently handicapped as opposed to use by individuals
with acute or transient disabilities (i.e. sprained ankles,
broken legs). Customs determined that the canes at issue
and the forearm crutches were of class or kind which are
primarily associated with use by the chronically or
permanently handicapped while the crutches at issue in that
case were of a class or kind which are predominantly used by
individuals with acute or transient disabilities.
Therefore, the canes and forearm crutches were determined to
be "specially designed or adapted" within the meaning of the
Nairobi Protocol.
In HRL 557712, dated June 27, 1994, Customs determined
that wheelchairs with special design features, although they
may be used by persons with acute or transient disabilities,
were predominantly used by persons with permanent or chronic
physical handicaps and therefore, were specially designed or
adapted for the handicapped. Also see HRL 557798, dated
June 17, 1994.
Customs ruled in HRL 556995, dated February 25, 1993,
that four styles of wheelchairs and two styles of walkers
were designed for long-term use and to provide the maximum
mobility, independence and comfort to the users, and
therefore, were specially designed or adapted for persons
with permanent disabilities. In HRL 557734, dated April 18,
1994, Customs determined that aluminum folding walkers were
predominantly used by the chronically and permanently
handicapped and were specially designed or adapted for the
handicapped.
With regard to the mobility organizers involved in this
case that are designed to be attached to wheelchairs,
walkers, canes and crutches, we believe that although these
products could be used by persons with acute or transient
disabilities who use wheelchairs, walkers, canes or
crutches, such persons would be unlikely to invest in such a
product. Based on the specific design features of each
product, which are discussed below, we find that four of the
styles are specially designed or adapted for the use or
benefit of handicapped persons and are entitled to duty-free
treatment under subheading 9817.00.96, HTSUS.
Style 30001, the fold-away carrypak for walkers and
wheelchairs, has specialized design features: it has three
straps so it can be attached to a walker or wheel chair. As
discussed infra, this product would not be used as a
backpack because the straps are unsuitable. It also has no
flap that would allow it to be closed. It has specialized
panels that give it more strength to be used to carry
heavier items, which would have little use to a person that
is not disabled.
Style 30004, a carrypak for wheelchairs, has two
circular straps that attach to the back handles of
wheelchairs. It could not be conveniently carried as a
backpack since it would be unbalanced and awkward to carry
and the straps are unsuitable for that use.
Style 30002, a carrypak for canes and crutches, is
specially designed to be attached to a cane or crutches by
means of a slip proof hook and loop system and provides the
handicapped individual with a storage pocket. Style 30005,
a carrymate for canes and crutches, is designed to be
attached to a cane or crutches by means of a slip proof hook
and loop system and provides the handicapped person with a
loop. Neither article has any other likely use than being
attached to a cane or crutches. Further, these articles can
be distinguished from the crutches in HRL 556532 because a
person who has a transient disability is unlikely to need
these articles on a short-term basis. Therefore, we find
that these styles of mobility organizers are of a class or
kind which are primarily associated with use by the
chronically or permanently handicapped.
In contrast with the above styles, style 30003, a
carrypak for walkers, has an adjustable shoulder strap that
would allow it to be carried by anyone, whether handicapped
or not, in addition to a strap that fits on a walker. The
outside sleeve states that the carrypak has a main
compartment, exterior pockets and water-repellent nylon.
None of these features are uniquely designed or useful only
for a handicapped person. Therefore, we find that style
30003 is not specially designed or adapted for the use or
benefit of handicapped persons. Accordingly, style 30003 is
not entitled to duty-free treatment under subheading
9817.00.96, HTSUS.
Classification of Style 30003 carrypak
In the alternative, counsel argues that style 30003
should be classified at subheading 9021.19.85, HTSUS, and
not at subheading 4202.92.3030, HTSUS, as Customs
determined. Subheading 9021.19.85, HTSUS provides for
Orthopedic appliances, including crutches,
surgical belts and trusses, splints and other
fracture appliances; artificial parts of the body;
hearing aids and other appliances which are worn
or carried, or implanted in the body, to
compensate for a defect or disability; parts and
accessories thereof: Artificial joints and other
orthopedic or fracture appliances; parts and
accessories thereof: other: other:
Note 2 to Chapter 90, HTSUS, provides that :
Subject to note 1 above, parts and accessories for machines,
apparatus, instruments, or articles of this chapter are to
be classified according to the following rules:
(a) Parts and accessories which are goods included
in any of the headings of this chapter or of
chapter 84, 85 or 91 (other than heading 8485,
8548 or 9033) are in all cases to be classified in
their respective headings;
(b) Other parts and accessories, if suitable for
use solely or principally with a particular kind
of machine, instrument or apparatus, or with a
number of machines, instruments or apparatus of
the same heading (including a machine, instrument
or apparatus of heading 9010, 9013 or 90310 are to
be classified with the machines, instruments or
apparatus of that kind;
(c) All other parts and accessories are to be
classified in heading 9033.
(Emphasis added.)
Although the two top straps of the bag render it
suitable for strapping onto a walker, it could as easily be
strapped onto a bicycle, stroller etc. The presence of the
shoulder strap further indicates that the bag is not
intended for use "solely or principally" with a walker as
required by Note 2(b) to Chapter 90, HTSUS. In short, for
the same reasons that style 30003 is not entitled to duty-free treatment under subheading 9817.00.96, HTSUS, the
protestant has not established that this article is suitable
for use solely or principally with a particular kind of
machine, instrument or apparatus, which in this case is a
walker. Accordingly, we affirm Customs determination that
the style 30003 bag is properly classified at subheading
4202.92.3030, HTSUS.
HOLDING:
The three types of diabetes organizers and styles
30001, 30002, 30004, and 30005 in the mobility organizer
line are entitled to duty-free treatment under subheading
9817.00.96, HTSUS. Accordingly, the portion of the protest
relating to these articles should be granted.
With regard to style 30003 in the mobility organizer
line, we find that this article is not entitled to duty-free
treatment under subheading 9817.00.96, HTSUS, or
classification in subheading 9021.19.85, HTSUS. It is
properly classified at subheading 4202.92.3030, HTSUS.
Accordingly, the portion of the protest relating to this
article should be denied.
In accordance with Section 3a(11)(b) of Customs
Directive 099 3550-065, dated August 4, 1993, this decision
should be attached to Customs Form 19, Notice of Action, and
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 this decision. Sixty days from the date
of this decision, the Office of Regulations and Rulings will
take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS and to the
public via the Diskette Subscription Service, the Freedom of
Information Act, and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division