CLA-2 CO:R:C:S 557734 MLR
Mr. David H. McKenney
Amrin, Inc.
38 Humbolt Ave.
Providence, RI 02906
RE: Eligibility under the Nairobi Protocol; specially designed or
adapted for the handicapped; walkers; canes; probability of
general public use
Dear Mr. McKenney:
This is in reference to your letter of September 8, 1993,
forwarded by the Chief, New York Seaport, requesting a ruling
regarding the applicability of subheading 9817.00.96, Harmonized
Tariff Schedule of the United States (HTSUS), to an aluminum
folding walker ("walker"). A photograph was submitted with the
request.
FACTS:
The article at issue is an aluminum folding walker, consisting
of two inverted "U" shape tubes with connecting and holding bars
in the middle, thus forming a four legged walking and standing
support.
ISSUE:
Whether the aluminum folding walker is "specially designed or
adapted" for the handicapped within the meaning of the Nairobi
Protocol, and, therefore, eligible for duty-free treatment under
subheading 9817.00.96, HTSUS.
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, HTSUS. 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, 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), subchapter XVII, Chapter 98, HTSUS, 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.
In Headquarters Ruling Letter (HRL) 556532 dated June 18,
1992, Customs considered 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, a pick-up cane with reacher, forearm crutches, and
standard wood and aluminum underarm crutches. First, it was
determined that the individuals who utilize the canes and crutches
are handicapped persons under Note 4(a) which includes those
individuals who have difficulty walking. Therefore, the primary
issue was whether some of the canes and crutches were precluded
from duty-free treatment under Note 4(b)(i) because they are
articles for acute or transient disabilities. Customs took the
position that while individuals with acute disabilities such as
sprained ankles, etc., may utilize the canes, the canes and forearm
crutches were of the class or kind which are predominately used by
permanently or chronically handicapped individuals. However, in
regard to the crutches, Customs took the position that although
they may be used by individuals with chronic or permanent
disability, they are predominately used by individuals with an
acute or transient disability, and therefore, were precluded from
duty-free treatment under the Nairobi Protocol.
In HRL 556532, Customs considered HRL 556449 dated May 5,
1992, where Customs enunciated the principle of "probability of
general public use" used in determining what constitutes "specially
designed or adapted" within the meaning of the Nairobi Protocol.
See also T.D. 92-77. This principle involves the consideration of
various factors on a case-by-case basis. The first factor to be
considered is the physical properties of the article itself, i.e.,
whether the article is easily distinguishable by properties of the
design and the corresponding use specific to its unique design,
from articles useful to non-handicapped individuals. Also, design
factors such as the utilization of angles in articles normally of
straight design were found to be common with articles associated
with the handicapped. The physics of leverage provided by the
design to compensate for weakness and lack of dexterity was another
factor considered. These "specific design" factors were considered
in conjunction with those factors discussed in HRL 074191 dated
December 13, 1984. The factors discussed in HRL 074191 include:
(1) whether the articles shows by design features that
it is specially adapted to particular needs of the
chronically handicapped; (2) whether the design of the
article may nearly equally suit the article for use by
persons with transient or acute disability; (3) whether
any characteristics are present that create a substantial
probability of use by the chronically handicapped (as
opposed to persons with transient or acute disabilities),
and (4) whether the article is easily distinguishable
from articles useful to the general public or whether use
of the article by the general public is so improbable
that such use would be fugitive.
The "probability of general public use" principle also includes an
evaluation of convenience. Lastly, HRL 556449 also considered
other factors for determining whether an article is "specially
designed or adapted" for the handicapped: (1) whether articles
are imported by manufacturers or distributors recognized or proven
to be involved in this class or kind of articles for the
handicapped; (2) whether the articles are sold in specialty stores
which serve handicapped individuals; and (3) whether the condition
of the articles at the time of importation indicate that these
articles are for the handicapped. However, it was determined that
each of these factors still must be weighed against the other
factors mentioned above. See HRL 556135 dated September 10, 1991
and HRL 087625 dated November 1, 1990.
Consequently, because HRL 556532 considered the "probability
of general public use" enunciated in HRL 556449 which made
reference to HRL 074191, it is our opinion that HRL 556532 is
applicable to the facts of this case. Moreover, in HRL 556995
dated February 25, 1993, Customs considered walkers with wheels
and a basket to be eligible for duty-free treatment under
subheading 9817.00.96, HTSUS, based on HRL 556532 where it was
determined that a walk-a-cane is very similar to a walker which is
clearly associated for with the chronically handicapped.
Furthermore, HRL 556995 upheld the position taken in HRL 556532
that although individuals with acute disabilities such as sprained
ankles, etc., could use the walkers, there was a substantial
probability that they are fashioned for and will be used by the
chronically handicapped.
It is, therefore, our opinion that although the aluminum
folding walker may be used by persons suffering acute disability,
they are predominately used by the chronically and permanently
handicapped. Accordingly, we further find that the individuals
who utilize the walkers would constitute handicapped persons under
Note 4(a) which defines that term as including those individuals
who have difficulty walking, and the walker is specially designed
to enable the handicapped to adapt to their disability.
HOLDING:
Based on the information submitted, the aluminum folding
walker is considered to be an article specially designed or adapted
for the handicapped, and therefore, eligible for duty-free
treatment under subheading 9817.00.96, HTSUS.
Sincerely,
John Durant, Director
Commercial Rulings Division