# HQ 563142

February 18, 2005

**CLA-02** RR:CR:SM 563142 EAC

**CATEGORY:** Classification

**TARIFF NO.:** 9817.00.96

Port Director

Port of Newark/New York

U.S. Customs and Border Protection

C/O Jennifer Tagliaferro

Protest and Control

1100 Raymond Boulevard

Suite 402

Newark, NJ 07102

**RE:** Protest and Application for Further Review 4601-04-101948;
Nairobi Protocol; eligibility of certain walking canes for duty-free
treatment under subheading 9817.00.96, HTSUS

Dear Port Director:

The above-referenced protest was forwarded to this office for further
review. We have considered the evidence provided with the protest, as
well as the points raised by your office and the protestant. Our
decision follows.

**FACTS:**

The case under consideration pertains to certain walking canes that were
entered at the U.S. Port of Newark/New York on August 7, 2003. The entry
was liquidated on June 18, 2004, and the above-referenced Protest and
Application for Further Review was filed on behalf of Harvy Surgical
Supply Corp. (hereinafter "protestant") on September 16, 2004. The
protest was, therefore, timely received.

The protestant is a supplier of medical and surgical devices. As noted
above, the merchandise under consideration in this particular case
consists of various styles of walking canes. The invoice description of
some of the canes are: Amber Fischer left handle, black shaft brass
Harvy-ring no rubber; Amber Fischer right handle, black shaft brass
Harvy-ring no rubber; Derby handle cane with carved right hand grip
(unisex), medium scorched with brass band; and, Gents wide Derby handle
cane brown, "XL" with brass band. Sample pictures of the canes have been
provided. The protestant describes the canes as being of the "standard"
variety and further states that the canes are not manufactured or
designed for use as fashion accessories. After importation, the
protestant markets and sells the canes to surgical supply dealers,
pharmacies, and wholesale distributors.

The subject merchandise was liquidated under subheading 6602.00.00,
Harmonized Tariff Schedule of the United States ("HTSUS"), which
provides for: "Walking-sticks, seat-sticks, whips, riding-crops and the
like." However, the protestant contends that the merchandise should have
been liquidated under subheading 9817.00.96, HTSUS, which provides for:
"Articles specially designed or adapted for the use or benefit of the
blind or other physically or mentally handicapped persons ... Other."

**ISSUE:**

Whether the subject merchandise is properly classified under subheading
6602.00.00, HTSUS, or subheading 9817.00.96, HTSUS.

**LAW AND ANALYSIS:**

The Nairobi Protocol to the Agreement on the Importation of Educational,
Scientific and Cultural Materials established 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
United States. The Senate stated in its Report that one of the goals of
this law was to benefit the handicapped and show United States 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 specially designed or
adapted for the use or benefit of the blind or other physically or
mentally handicapped persons\" are eligible to receive duty-free
treatment.\
\
U.S. Note 4(a), 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),
Chapter 98, HTSUS, 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.

In Headquarters Ruling Letter ("HRL") 556532 dated June 18, 1992, U.S.
Customs and Border Protection ("CBP") considered traditional white and
red folding canes for the blind or visually impaired, standard wood and
lucite walking canes (one style with a handle similar to the canes under
consideration in this case), 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. In HRL
556532, it was determined that the individuals who utilized the canes
and crutches were handicapped persons pursuant to Note 4(a) which
includes individuals who have difficulty walking. Therefore, the
remaining issue to be resolved was whether some of the canes and
crutches were precluded from receiving duty-free treatment under Note
4(b)(i) as articles intended for acute or transient disabilities. Upon
consideration of the matter, CBP determined that, even though
individuals with acute disabilities (such as sprained ankles, etc.)
utilized the canes in some instances, the canes and forearm crutches
were of the class or kind predominately used by permanently or
chronically handicapped individuals. Therefore, the canes and forearm
crutches were eligible to receive duty-free treatment under subheading
9817.00.96, HTSUS. However, CBP also held that, even though crutches may
be used by individuals with chronic or permanent disabilities, they are
predominantly used by individuals with acute or transient disabilities.
As such, the crutches (other than the forearm crutches) were precluded
from receiving duty-free treatment under subheading 9817.00.96, HTSUS.
[See also]{.underline}, HRL 557734 dated April 18, 1994 (upholding and
relying on HRL 556532 in a case pertaining to the applicability of
subheading 9817.00.96, HTSUS, to certain aluminum folding walkers).

We note that the canes in the instant case appear to be similar to those
considered in HRL 556532. The handles of the canes are designed to
distribute the weight of the user over the cane's shaft to ensure
maximum stability. Accordingly, it is our opinion that the individuals
who utilize the Harvy canes constitute handicapped persons pursuant to
Note 4(a) and that the canes are of the variety predominantly used by
the chronically and permanently handicapped. Therefore, we find that the
Harvy walking canes are eligible to receive duty-free treatment under
subheading 9817.00.96, HTSUS.

**HOLDING:**

Based upon the information before us, we find that the Harvy walking
canes under consideration in this case are eligible to receive duty-free
treatment under subheading 9817.00.96, HTSUS. Therefore, the protest
should be granted in full.

In accordance with the Protest/Petition Processing Handbook (CIS HB,
January 2002, pp. 18 and 21), you are to mail this decision, together
with the Customs Form 19, 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 make the decision available to CBP personnel, and to the
public on the CBP Home Page on the World Wide Web at
[www.cbp.gov](http://www.cbp.gov/), by means of the Freedom of
Information Act, and other methods of public distribution.

> Sincerely,

Myles B. Harmon, Director

Commercial Rulings Division