OT:RR:CTF:VS H148717 BGK
Ms. Tania Ma Perez Perez
Novaf Andalucía 2007, S.L.
Polig. Ind. Santa Teresa, Nave 1
Apdo. De Correos 173
11520 Rota (Cádiz) – Spain
RE: Eligibility of certain beach, adventure, and accessibility items and vehicles for duty-free treatment under subheading 9817.00.96, HTSUS, Nairobi Protocol, Annex E, to the Florence Agreement
Dear Ms. Perez:
This is in response to your request for a binding ruling on behalf of Novaf Andalucía 2007, S.L. (Novaf), d/b/a in the U.S. as Solutions for Disabilities, Inc. at USA, concerning the eligibility of certain beach, adventure, and accessibility articles for duty-free tariff treatment under subheading 9817.00.96, Harmonized Tariff Schedule of the United States (HTSUS), implementing the Nairobi Protocol.
FACTS:
Novaf claims to be a company that creates goods “. . . with the aim of making life easier for people with mobility problems.” Its products have been certified by the Ministry for Social Policy and Sport in Spain, and won first prize in the Innovation category for the Andalusia community (Spanish State) “Open Mind Award”. The products have also received recognition for accessibility from other Spanish states.
This ruling request covers the Oceanic, a surf chair; the Oceanic Baby, a surf chair for children; and the Oceanic Sun, a high-seated deck/beach chair, each claimed to be for use by people with reduced mobility. You also request a ruling for the MRI.1, a vehicle claimed to be specifically-adapted for transporting wheelchairs to places of difficult access; the Country, a concept vehicle claimed to be for one or two people with disabilities; and the Ball Box, a ball box claimed to be designed to gain access for all users. It also covers the Bed Grip, claimed to be designed to anchor wheelchairs to bed sides; the Amphibious Crutch, a collection of floating crutches in a crutch stand; and the Hydraulic Lift NA350, a manual lift claimed to be for moving disabled individuals from wheelchairs to other places.
The Oceanic and Oceanic Baby are three-wheeled buggies that are designed such that the user remains in a reclined position with an ergonomic chair, movable footrest, and rotating floating armrests. The Oceanic seat has two positions, one for transitioning the user into the chair (18.5 inches), and another, adjusted by a pedal on the back, for use and floating (15.75 inches). It is stated that the Oceanic Baby only has one position because children are normally transferred by others. The seat height on the Oceanic Baby is 12.99 inches, which is stated to also be the height of a child wheelchair. The backrest of the Oceanic has another back bar behind it for the supporting individual to push the chair. A curved bar is attached to the front of both chairs to be used for either pulling the chair, or allowing the user of the chair to steer with their hands while being pushed. The chair floats when it is submerged, and the wheels are designed to be wide-enough to maneuver through sand. The chairs are built for durability and quick assembly and disassembly for transport.
The Oceanic Baby is designed in almost the same way as the Oceanic, except smaller in size. It is also designed to telescope in size to adjust with and to the child. It can accommodate a child from 2’8” to 5’3” and up to 150 pounds.
The Oceanic Sun is a deck/beach chair, said to be designed for people with disabilities because of its height, wheels, stability, and lack of armrests. The chair is made from aluminum, stainless steel, and sailing fabric. The back has two different leaning positions, and the footrest can be removed from the front. The seat of the chair is 20.47 inches from the ground, and the chair is designed for stability. There are two wide wheels attached to the back of the chair to allow for movement on different surfaces. It is also claimed that the chair can be used as either a chair or to lower a disabled individual into a pool.
The MRI.1 is described as a “specifically-adapted vehicle for transporting people with mobility problems to places with difficult access.” The device is built on a caterpillar-track system, and is able to travel over steps, dunes, snow and sand. A wheelchair is placed inside the vehicle by way of a built-in ramp on the front, and then is guided to the spot where the chair is secured. The vehicle is driven by the supporting individual, who is walking behind the vehicle. There is a built-in seat to accommodate a non-wheelchair passenger.
The Country is designed similar to a small golf cart, except the back is designed to hold and secure two wheelchairs, and the vehicle is hand steered and driven by two grips that come up from under the seat. The seat is designed at wheelchair height (20.47 inches). The sides of the back fold down to assist in loading, and the sides of the front rotate out to assist in transfer. The outermost steering mechanism also folds down to avoid interfering with the transfer.
The Ball Box is designed to store sports balls, and resembles a large metal basketball. It has an ergonomic opening with a hydraulic system for opening and closing. The front is designed to allow for wheelchair access because the opening is curved down. The box is on a system of rotating wheels, and has a capacity of more than 25 balls. It is stated that these characteristics “make it accessible to all users” and that “[i]t is an essential element in any court, due to its comfort and aesthetics.
The Bed Grip is an anchoring system used to grip a wheelchair to a bed. It is designed to fix the wheelchair in place to assist in autonomous transfer and the minimization of risks, like the wheelchair overturning. It is made of aluminum, portable, and can be anchored to different kinds of beds. It can also fit on either side of the bed. It is connected to the bed by attaching two metal plates, one on each side of the bed frame, to each other. Two hexagonal shapes then attach to each other, leaving space in the middle, and then attach to the connection point on the bed. It is designed such that the wheelchair anchors by pushing one of the wheels in between the two hexagonal plates.
Amphibious Crutches are forearm crutches designed to float so they can be left in the water while the user is swimming. They also come with a floating support item to anchor multiple pairs together. It can anchor together four pairs of child and/or adult crutches.
The Hydraulic Lift NA350 is a manual lift that allows the transfer of people in wheelchairs from their chair to the pool and other places. The lift is hydraulic instead of electric to ensure there are not issues with electricity in water areas like the pool. The lift can accommodate up to 770 pounds.
ISSUE:
Whether the various accessibility articles: the Oceanic (and Oceanic Baby), Oceanic Sun, MRI.1, Country, Ball Box, Bed Grip, Amphibious Crutches, and Hydraulic Lift NA350 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 collectors’ pieces of an educational, scientific or cultural character; visual and auditory materials of an educational, scientific or cultural character; scientific instruments and apparatus; and articles for the blind.
The Nairobi Protocol to the Florence Agreement, adopted by UNESCO in November 1976, broadened the scope of the Florence Agreement by removing some of its restrictions on articles otherwise entitled to duty-free status, and by expanding the Agreement to embrace technologically new articles and previously uncovered works of art, films, etc. One major new category of articles was: “all materials specially designed for the education, employment and social advancement of other physically or mentally handicapped persons…” Protocol to the Agreement on the Importation of Educational, Scientific, and Cultural Materials Annex E (ii), opened for signature March 1, 1977, 1976 U.S.T. LEXIS 388. Thus, the Protocol is intended to afford duty-free treatment not only to articles for the blind, but all other handicapped persons without regard to the source of their affliction. 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 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 (Pub. L. no. 100-418, 102 Stat. 1107) 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 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, 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.” In this case, all of these items have been designed for individuals who suffer from a physical impairment limiting their ability to walk. The information produced by the company for both our office and the company’s website describes the goal of making more of life accessible to those individuals with reduced mobility. One of the enumerated handicaps in U.S. Note 4(a) is a physical impairment limiting one’s ability to walk; therefore, these are items for handicapped persons, as described in U.S. Note 4(a).
U.S. Note 4(b), subchapter XVII, Chapter 98, HTSUS, which establishes limits on classification of products in these subheadings, 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.” Of these enumerated exclusions, the only potentially applicable exclusion is (i), articles for acute or transient disability. These items are primarily specialty items designed for assisting a person of limited mobility in specific activities, and as such, would most likely not be purchased by someone who anticipates a disability of an acute or transient nature. The high pricing of the items also suggests that the items are intended to be purchased for long-term disabilities, as opposed to acute or transient ones. In addition, all of these items except the amphibious crutches are designed for people in wheelchairs, which have themselves been held by U.S. Customs and Border Protection (CBP) to not be for acute or transient disabilities. See Headquarters Ruling Letter (HRL) 556995, dated February 25, 1993 (stating that although it was possible that persons suffering from acute disability could use the wheelchairs, based on their design they were fashioned for the chronically handicapped). With regard to the amphibious crutches, CBP has distinguished underarm crutches from forearm crutches (like the amphibious crutches), and held that underarm crutches are likely to be used for acute or transient disabilities like a sprained ankle or broken foot, but forearm crutches are more likely to be used by an individual with a more permanent disability. See HRL 556532, dated June 18, 1992. As such, none of these items are excluded under U.S. Note 4(b). Therefore, none of the accessibility articles subject to this ruling are excluded from duty-free treatment under subheading 9817.00.96, HTSUS by the enumerated exclusions in U.S. Note 4(b).
The remaining issue is whether the items are “specially designed or adapted” for the use or benefit of the handicapped, as described within the meaning of subheading 9817.00.96, HTSUS. CBP makes this determination on a case-by-case basis. T.D. 92 77 (26 Cust. B. & Dec. 35), dated August 3, 1992. CBP has determined that the primary factor to be considered concerns the physical properties of the article itself: “whether the article is easily distinguishable, by properties of the design and the corresponding use specific to this unique design, from articles useful to non-handicapped individuals”; in addition to considering the probability of general public use,
which includes a convenience factor: whether it would be inconvenient for non-handicapped individuals. T.D. 92-77. Not all articles must be inconvenient for non-handicapped individuals, this is merely a factor. In T.D. 92-77, CBP listed the other factors it has considered in determining whether an article is “specially designed or adapted” for the handicapped. These include:
(a) whether articles are imported by manufacturers or distributors recognized or proven to be involved in this class or kind of articles for the handicapped; (b) whether the articles are sold in specialty store which serve handicapped individuals; and (c) whether the condition of the articles at the time of importation indicates that these articles are for the handicapped.
T.D. 92-77 (citing HRL 556090, dated November 8, 1991; HRL 556153, dated September 10, 1991; and HRL 087625, dated November 1, 1990).
In this case, it is clear that the articles are produced by a company dedicated to creating articles for individuals with reduced mobility by the way the company promotes itself and the amount of recognition and awards it has received for its products and innovation. This is only one consideration however. It is important to look at the physical characteristics of each article in making this determination.
Oceanic, Oceanic Baby, and Oceanic Sun
These articles are stated to be designed to make the beach more accessible to those with mobility impairments, and each has physical adaptations to do so. The seat heights are designed make the transition from a wheelchair to the article more convenient, and in the case of the Oceanic, the seat is adjustable for that purpose. The Oceanic Sun also has a removable footrest to make transition more convenient, and is designed to produce greater stability. In HRL H055815, dated May 26, 2010, the seat height of the toilet was a distinguishing factor in whether a toilet was specially designed or adapted for handicapped individuals. In this case, the seat heights are specially designed to accommodate transfer from a wheelchair. The Oceanic Sun also has two wide back wheels. Additionally, the price of these products in comparison to products designed for the mass market also makes it less likely that these articles will be purchased for a non-handicapped person.
In researching the Oceanic and Oceanic Baby, a competitive product was found that was not advertised as being solely for use by handicapped individuals on its U.S. website (the U.S. company has since gone out of business); however, the product was marketed toward handicapped individuals on its European website. In addition, this product lacks, or does not advertise, adjustable seat heights, and the seat is stated to be at half the height of a chair. The bar for pulling the chair on the competitive product
is also not able to become a steering bar for the passenger. Although these somewhat similar products are marketed for the general population in the U.S., we find that the Oceanic and Oceanic Baby are still considered specially designed or adapted for use by handicapped persons due to their unique features. The only similar product found for comparison to the Oceanic Sun is also marketed toward handicapped individuals and is produced by a company specializing in medical PVC products.
Therefore we find that the Oceanic, Oceanic Baby, and Oceanic Sun are specially designed or adapted for use by handicapped persons, and therefore, are eligible for duty-free treatment under subheading 9817.00.96, HTSUS.
MRI.1 and Country
The MRI.1 and the Country are both vehicles stated to be developed with the goal of assisting those individuals with mobility challenges in accessing hard to reach areas or areas of rough terrain. The MRI.1 is designed to hold a wheelchair and a passenger. The MRI.1 has a ramp to load the wheelchair onto the base, and then secures the wheelchair for travel. The vehicle is on caterpillar tracts, and is driven by the operator. As the vehicle is made specifically to lock in a wheelchair and hold a wheelchair for travel, it is specifically designed or adapted for use by handicapped persons. The fact that the MRI.1 may also accommodate a non-handicapped passenger will not eliminate the MRI.1’s qualification for duty-free treatment under subheading 9817.00.96, HTSUS.
The Country is very similar to a small golf cart, except it has space for wheelchairs in the back instead of a second seat or golf bags. More specifically, the back appears designed to hold up to two wheelchairs in place. The seat height is designed at a height for a convenient transfer from a wheelchair. In addition, the cart is hand-driven, not pedal-driven. This is an important distinguishing factor as it would be inconvenient and unnatural for many non-handicapped individuals to drive with only their hands. As such, we find the Country is eligible for duty-free treatment under subheading 9817.00.96, HTSUS.
Ball Box
The Ball Box is stated to be designed for handicapped individuals due to the height of its opening, the dipping front shape of the opening, and the hydraulic lid; however, it is also stated to be “. . .an essential element in any court, due to its comfort and aesthetics.” It is also described as being designed for ease of use by all users.
In HRL 950772, dated March 3, 1992, CBP held that although a telephone had colored jumbo size buttons, a flashing light, tone and volume control, a ringer with a lower tone than most phones, and number memory, which may make it appealing to the hearing and/or visually impaired, these features were also attractive to the general
public and “insufficiently significant to alter the basic character of a conventional phone.” The Ball Box is similar to the phone in HRL 950772, the additional features will make it more convenient for use by an individual in a wheelchair, but are also attractive features for the general public. Therefore, we find the Ball Box is not eligible for duty-free treatment under subheading 9817.00.96, HTSUS.
Bed Grip
The Bed Grip is designed to anchor a wheelchair to a bed to avoid accidents when transferring, such as the chair flipping over. The Bed Grip does not appear to be able to fill any other function, and as such, is specially designed or adapted for use by handicapped persons. Therefore, we find that the Bed Grip qualifies for subheading 9817.00.96, HTSUS, duty-free treatment.
Amphibious Crutch
The Amphibious Crutch is designed to act not only as a forearm crutch, but has the added benefit of being able to float in water. It would be unnecessary and inconvenient for a non-handicapped individual to use a forearm crutch, and thus it is considered specially designed or adapted for use by a handicapped person. The Amphibious Crutch is eligible for duty-free treatment under subheading 9817.00.96, HTSUS.
Hydraulic Lift NA350
The Hydraulic Lift is a non-electric lift for transferring an individual out of a wheelchair to another location or vise-versa. It would be unnecessary to transfer a non-handicapped individual with the use of a lift as they could successfully move themselves to another chair or the water. As such, the Hydraulic Lift NA350 is specially designed or adapted for use by or for the benefit of a handicapped person. While arguably it is not for use by a handicapped person as it appears necessary for another individual to operate the lift, it is at least for the benefit of the handicapped person being transferred, which also qualifies the article for duty-free treatment under subheading 9817.00.96, HTSUS. The Hydraulic Lift NA350 is eligible for duty-free treatment under subheading 9817.00.96, HTSUS.
HOLDING:
All the above articles except the Ball Box are specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons, and therefore, eligible for duty-free treatment under subheading 9817.00.96, HTSUS. The Ball Box is not sufficiently designed or adapted for use by handicapped people, and therefore, does not qualify for duty-free treatment under subheading 9817.00.96, HTSUS.
A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.
Sincerely,
Monika R. Brenner
Chief, Valuation & Special Programs Branch