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HQ 557712

June 27, 1994

CLA-2 CO:R:C:S 557712 BLS


TARIFF NO.: 9817.00.96

District Director of Customs
P.O. Box 3130
Laredo, Texas 78044-3130

RE: Application for Further Review of Protest No. 2304- 93-10011; eligibility of wheelchairs for duty-free treatment as articles for the handicapped under the Nairobi Protocol

Dear Sir:

This is in reference to an Application for Further Review of the above-captioned matter, timely filed by counsel on behalf of Invacare Corporation, concerning the eligibility of certain wheelchairs for duty-free entry under subheading 9817.00.96, Harmonized Tariff Schedule of the United States (HTSUS). Your office has classified the wheelchairs as invalid carriages under subheading 8713.00.00009, HTSUS.


The subject wheelchairs covered by this protest are the "World Chair", the "Rolls 1000", and the "Series 1000 E" (now identified as the "Tracer" and "Tracer Plus" models). Literature describing the wheelchairs has been submitted. Certain features common to each of the chairs include quad releases on swinging leg riggings and/or legrests and removable stainless steel clothing guards. The "World Chair" and "Rolls 1000" models also have as standard features a quad release mechanism for the arm riggings. (The quad release feature is explained in the submission as a device to permit an individual with permanent arthritis or who is paralyzed and doesn't have dexterity in his/her fingers to release the locking mechanism on the legrests, footrests, or armrests, with the club of his/her hand.) Some of the models may have removable arms. Counsel has orally advised that the wheelchairs in their condition as imported include all features described in the brochures as standard (including the quad release and stainless steel guards). The brochures place primary emphasis on the chairs' comfort, durability, low maintenance, and rollability.


Whether the wheelchairs are eligible for duty-free treatment under subheading 9817.00.96, HTSUS.


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. Presidental Proclamation 5978 and section 1121 of the Omnibus Trade and Competitive 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, ("Note 4(a)"), provides 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." However, U.S. Note 4(b)(i) provides that subheading 9817.00.96, HTSUS, does 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 individuals 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 probability of general public use; 2) whether the article is imported by a manufacturer or distributor recognized to be involved in the class or kind of articles for the handicapped; 3) whether the article is sold in a specialty store which serves handicapped individuals; and 4) whether the condition of the article at the time of importation indicates that it is 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 557798 dated June 17, 1994, we found that while certain wheelchairs could also be used by persons with acute or transient disabilities, they were predominately used by individuals with permanent or chronic disabilities. Each of the wheelchairs in that case similarly had a quad release, as well as detachable (as opposed to fixed) front riggings, which designs we noted would not usually be found in wheelchairs used by persons with acute or transient disabilities for temporary use only. The literature for those wheelchairs also emphasized comfort, durability, and convenience of the various models. (See also HRL 556995 dated February 25, 1993, where we noted that the design of the wheelchairs under review was based on ergonomic principles and movement patterns of different disabilities and age groups, which allowed for various adjustments to achieve the best sitting position, and to increase body activity. The chairs were also described (in the literature) as extremely durable with high performance features. Based on their unique design, we found that there was a substantial probability that they were fashioned for and would be used by the chronically handicapped.)

We find that the subject wheelchairs are also "specially designed or adapted" for the use of the handicapped. The literature emphasizes the chairs' comfort, durability, low maintenance and superior roll performance. In particular, we note that all models include as standard features a quad release and swingaway front riggings, designs which we find are intended for the permanently disabled.

Under these circumstances, while we also find that these wheelchairs can be used by persons with acute or transient
disabilities, they were clearly designed for, and are predominantly used by, persons with permanent or chronic physical handicaps.


The wheelchairs are articles specially designed or adapted for the handicapped. Therefore, they are eligible for duty-free 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. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. 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

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