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NY D83987




November 18, 1998

CLA-2-90:RR:NC:MM:105 D83987

CATEGORY: CLASSIFICATION

TARIFF NO.: 9817.00.96

Ms. Connie Freeman
A.W. Fenton Company
6565 Eastland Avenue
Cleveland, OH 44142-1389

RE: The tariff classification of oxygen cylinder carts, as articles for the handicapped, from China

Dear Ms. Freeman:

In your letter, dated October 23, 1998, for Invacare, you requested a tariff classification ruling.

As you note, the base classification for this item was ruled to be 8716.80.5090 in NYRL D82948, dated October 14, 1998.

The issue here is only whether this is also an article for the handicapped.

The item is much like the two wheeled carts used to carry golf bags. However, due to the shaping of the prongs, we agree it is specially designed to carry relatively large oxygen cylinders.

Although oxygen cylinders, in general, are used to provide oxygen to many besides the handicapped, this cart is not likely to be used by Fire or other Emergency Services, since they often must negotiate stairs and other obstacles, nor by Intensive Care Units in hospitals, since they are more likely to use stationary or built in oxygen supplies.

Although you provide no evidence to support your contention, "the majority of these devices will be used by people with chronic, long-term disabilities", we do note that respiratory diseases, such as emphysema and asthma, are, unfortunately, much more likely to be chronic or long-term than other medical reasons for hospital stays or home care, such as fractures or recoveries from surgery.

Although respiratory disease is not the only reason for the usage of oxygen in medicine, a review of the general literature indicates it is definitely the largest.

The applicable secondary subheading for this item will be 9817.00.96, Harmonized Tariff Schedule of the United States (HTS), which provides for, inter alia, articles specially designed or adapted for the benefit of persons suffering from a permanent or chronic physical impairment which substantially limits the major life activity of breathing. If all applicable entry requirements, including the filing of a form ITA-362P, are met, the rate of duty will be free.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist James Sheridan at 212-466-5669.

Sincerely,

Robert B. Swierupski
Director,
National Commodity

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