HQ 561020

October 14, 1998

CLA-2 RR:CR:SM 561020 KSG

CATEGORY: Classification

TARIFF NO.: 9817.00.96

Area Port Director

U.S. Customs Service

Providence, Rhode Island

RE: Application for Further Review of Protest No. 0502-97-100013;
Nairobi Protocol; articles specifically

designed or adapted for the use or

benefit of the blind or other physically or mentally

handicapped; subheading 9817.00.96, HTSUS;

diabetes

Dear Sir:

This is in reference to a protest and application for

further review filed by Medport Inc., contesting the denial

of duty free treatment under subheading 9817.00.96, of the

Harmonized Tariff Schedule of the United States (\"HTSUS\"),

to imported diabetes organizers and mobility organizers.

FACTS:

The imported articles included in this protest are

eight different products involving two lines of merchandise.

The first line of merchandise consists of diabetes

organizers. The second line of merchandise consists of

mobility organizers. The protestant in this case is

Medport, Inc., a company that specializes in the health

care/ disabilities market. We are informed that Medport

worked with focus groups, pharmacists, other health care

experts and people with disabilities to develop products

that would meet the specialized needs of disabled people.

Both these lines are sold over the counter in

drugstores and medical supply stores, as well as by mail.

The diabetes organizers are advertised in two specialized

publications dealing with issues of interest to people with

diabetes. The diabetes organizers have specialized features

such as separate compartments equipped with a plastic mini

ice pack for the purpose of maintaining insulin at the

proper temperature, and another compartment containing

elastic straps to hold syringes and insulin bottles,

temperature devices and pockets to hold a meter. The

diabetes organizers are sold in sleeves that advertise the

product as designed for a person with diabetes in large bold

lettering. The protest involves three diabetes organizers:

styles 10006, 10007 and 10008.

Style 10006 is called the wallet organizer. It is a

zippered case that measures 7 3/4\" x 3 3/4\" x 3/4\". The

wallet organizer is designed to carry up to three syringes

for insulin and two insulin bottles. The organizer has a

center divider that creates two compartments. One

compartment contains elastic straps that hold the syringes

and insulin bottles. The other compartment has a vinyl

pocket that holds a freezable mini ice pack.

Style 10007 is called the daily organizer. It measures

6.75\" x 5.5\" x 2.5\". It is designed to hold enough insulin

and related supplies to last up to three days. It also has

two compartments, elastic straps to hold syringes and

insulin, a log book, a zippered pocket designed to hold a

meter, and a clear plastic pouch designed to hold syringes

and insulin. The other compartment is designed to hold

insulin, a plastic mini ice pack, and a plastic pouch.

Style 10008 is called the travel organizer. It

measures 9\" x 6\" x 2.5\". It is designed to hold enough

insulin and related supplies for up to two weeks. It also

has two compartments: a cool side with two plastic mini ice

packs and a room temperature side designed to hold a meter,

supplies and a detachable plastic waste pouch.

The other line, the mobility organizers, consists of

five styles: styles 30001, 30002, 30003, 30004, and 30005.

You state that the mobility organizers are designed

specifically for persons with chronic ambulatory

impairments. These products are packaged in cardboard boxes

which indicate that the articles are for use with products

like walkers, wheelchairs, canes or crutches.

Style 30001 is called the fold-away carrypak for

walkers and wheelchairs. It is nylon and measures 15\" x 11\"

x 9\". It has three straps so that it can be attached to a

walker or wheel chair. This product would not be usable as

a backpack because the straps are too short and

inconveniently placed for carrying by an individual. It

also has no flap that would allow it to be closed. There is

one large main compartment as well as outside pockets that

could be used to carry various items. It has panels that

give it more strength so that it can be used to carry

heavier items.

Style 30002 is called a carrypak for canes and

crutches. It is nylon and measures 10\" x 5 1/2\" x 1 3/4\".

It is designed to be attached to a cane or crutches by means

of a slip proof hook and loop system. It has a main storage

compartment pocket, a beverage holder and pockets for pens.

Style 30003 is called a carrypak for walkers. It is

nylon and measures 14\" x 12\" x 2\". It has three straps that

allow it to be attached to center crossbar walkers. It has

a main compartment and exterior pockets that could be used

to carry items. This product also has an adjustable

shoulder strap that would allow it to be carried by a

person.

Style 30004 is called a carrypak for wheelchairs. It

is nylon and measures 12 1/2\" x 14\" x 5\". It has two

circular straps that attach to the back handles of

wheelchairs. It would not be usable as a backpack since it

would be unbalanced and would not fit on a person\'s back.

Style 30005 is called a carrymate for canes and

crutches. It is designed to be attached to a cane or

crutches by means of a slip proof hook and loop system. It

stays gripped to the cane, walker, or crutch because of its

tread- like construction. It has a loop that is designed to

hold keys and a jacket or gloves.

ISSUE:

Whether the three diabetes organizers and the five

mobility organizers 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

collector\'s pieces; visual and auditory materials;

scientific instruments and apparatus; and articles for the

blind.

The Nairobi Protocol to the Florence Agreement on the

Importation of Educational, Scientific, and Cultural

Materials Act of 1982 expanded the scope of the Florence

Agreement primarily by expanding 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 U.S. 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 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 specifically 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), Chapter 98, HTSUS (\"U.S. Note 4(a)\"),

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 (\"U.S. Note 4(b)\"),

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.

People who suffer from kidney failure are considered

\"handicapped.\" See Travenol Laboratories, Inc. v. United

States, 813 F. Supp. 840 (CIT 1993), and HRL 559120, dated

October 20, 1995. Customs ruled in HRL 556090, dated

November 8, 1991, that individuals who suffer from chronic

arthritis, scoliosis, severe hernia problems and post-polio

syndrome and who need heavy-duty support corsets are

\"handicapped\" within the meaning of this provision because

without the corsets, they are substantially limited in their

ability to walk and perform manual tasks. Individuals who

suffer from chronic incontinence are considered

\"handicapped\" because this condition can interfere with

working. See HRL 960056, dated January 30, 1997.

Section 3 of the Americans with Disabilities Act of

1990 (\"ADA\"), 42 U.S.C. 12102(2) defines a disability as \"a

physical or mental impairment that substantially limits one

or more of the major life activities of such individual.\"

Because this definition uses language similar to the

definition

set forth above in U.S. Note 4(a), chapter 98, HTSUS, it is

instructive to examine the case law under the ADA. The

federal courts have held that diabetes substantially limits

one or more of the major life activities of an individual.

See Canon v. Clark, 883 F. Supp. 718 (S.D. Fla. 1995),

Sarsycki v. United Parcel Service, 862 F. Supp. 336 (W.D.

Okla. 1994), and EEOC v. The Chrysler Corporation, 917 F.

Supp. 1164 (E.D. Mich. 1996). In the Chrysler Corporation

case, the District Court ruled that an industrial

electrician who suffered from diabetes was disabled within

the meaning of the ADA because he had an impairment which

significantly restricted his ability to perform either a

class of jobs or a broad range of jobs in various classes.

As discussed in the cases above, people with diabetes

are limited in their ability to perform a broad range of

jobs because they must be able to monitor their blood sugar,

inject insulin if prescribed, and have work restrictions due

to excessive urination, possible nausea, dizziness and

fainting. Like chronic incontinence, this interferes with

working\-- a major life activity. Therefore, persons with

diabetes suffer from a permanent or chronic physical

impairment which substantially limits a major life activity

and therefore, are considered physically handicapped persons

under U.S. Note 4(a).

In Headquarters Ruling Letter (\"HRL\") 556532, dated

June 18, 1992, Customs ruled that persons who use canes and

forearm crutches are handicapped persons under U.S. Note

4(a) which includes individuals who have difficulty walking.

Further, Customs has held that persons who use walkers and

wheelchairs are handicapped persons under U.S. Note 4(a).

See HRL 557712, dated June 27, 1994, HRL 557734, dated April

18, 1994, HRL 557798, dated June 17, 1994, and HRL 556995,

dated February 25, 1993. Accordingly, we find that people

who have limited or no ability to walk without assistance

suffer from a permanent or chronic physical impairment which

substantially limits a major life activity and therefore,

are also considered physically handicapped persons under

U.S. Note 4(a).

The last issue is whether the eight products involved

in this case are \"specially designed or adapted\" for the use

or benefit of handicapped persons, which is required by the

superior text in subheading 9817.00.96, HTSUS.

The meaning of the phrase \"specially designed or

adapted\" has been decided on a case-by-case basis. In HRL

556449, dated May 5, 1992, Customs set forth factors it

would consider in making this case-by-case determination.

These factors include: 1)the physical properties of the

article itself, i.e., whether the article is easily

distinguishable, by properties of the design, form, and the

corresponding use specific to this unique design, from

articles useful to non-handicapped persons; 2) whether any

characteristics are present that create a substantial

probability of use by the chronically handicapped so that

the article is easily distinguishable from articles useful

to the general public and any use thereof by the general

public is so improbable that it would be fugitive; 3)

whether articles are imported by manufacturers or

distributors recognized or proven to be involved in this

class or kind of articles for the handicapped; 4) whether

the articles are sold in specialty stores which serve

handicapped individuals; and 5) whether the condition of the

articles at the time of importation indicates that these

articles are for the handicapped.

Customs has held that a two-handed mug, a nail file

with a lightweight handle and pen with a wide base have a

general public use; therefore, these articles were not

considered specially designed or adapted for the

handicapped. A bedside toilet, a plate with a raised edge,

a potato peeler designed for one- handed use, and a shower

stool were determined to be specially designed or adapted

for the handicapped.

In this case, we have examined the samples and

literature prepared by Medport and find that the three

diabetes organizers have distinctive design features, and

characteristics which easily distinguish them from articles

useful to the general public so that any use thereof by the

general public would be so improbable that it would be

fugitive. Examples of these distinctive features are: the

separate cool compartment for insulin, the elastic straps

for insulin bottles and syringes, compartments for meters,

items to measure temperature and a detachable medical waste

pouch. Further, Medport has stated that it primarily sells

these products in specialized sections of drugstores, by

mail, and it advertises the products in specialized

publications targeted to people with diabetes. We also

note that Medport specializes in the health care area and

specifically, with articles for people with diabetes. We

find that the three diabetes organizers are specially

designed or adapted for the use or benefit of handicapped

persons and are entitled to duty-free treatment under

subheading 9817.00.96, HTSUS.

The mobility organizers involved in this case are

designed to be used with wheelchairs, walkers, canes and

crutches. While Customs has not specifically ruled on such

organizers, there is a line of cases dealing with the

eligibility of the wheelchairs, walkers, canes and crutches

for duty free treatment under subheading 9817.00.96. In HRL

556532, dated June 18, 1992, Customs considered the issue of

whether the canes and crutches in that case were of a kind

or class which are primarily associated with use by the

permanently handicapped as opposed to use by individuals

with acute or transient disabilities (i.e. sprained ankles,

broken legs). Customs determined that the canes at issue

and the forearm crutches were of class or kind which are

primarily associated with use by the chronically or

permanently handicapped while the crutches at issue in that

case were of a class or kind which are predominantly used by

individuals with acute or transient disabilities.

Therefore, the canes and forearm crutches were determined to

be \"specially designed or adapted\" within the meaning of the

Nairobi Protocol.

In HRL 557712, dated June 27, 1994, Customs determined

that wheelchairs with special design features, although they

may be used by persons with acute or transient disabilities,

were predominantly used by persons with permanent or chronic

physical handicaps and therefore, were specially designed or

adapted for the handicapped. Also see HRL 557798, dated

June 17, 1994.

Customs ruled in HRL 556995, dated February 25, 1993,

that four styles of wheelchairs and two styles of walkers

were designed for long-term use and to provide the maximum

mobility, independence and comfort to the users, and

therefore, were specially designed or adapted for persons

with permanent disabilities. In HRL 557734, dated April 18,

1994, Customs determined that aluminum folding walkers were

predominantly used by the chronically and permanently

handicapped and were specially designed or adapted for the

handicapped.

With regard to the mobility organizers involved in this

case that are designed to be attached to wheelchairs,

walkers, canes and crutches, we believe that although these

products could be used by persons with acute or transient

disabilities who use wheelchairs, walkers, canes or

crutches, such persons would be unlikely to invest in such a

product. Based on the specific design features of each

product, which are discussed below, we find that four of the

styles are specially designed or adapted for the use or

benefit of handicapped persons and are entitled to duty-free

treatment under subheading 9817.00.96, HTSUS.

Style 30001, the fold-away carrypak for walkers and

wheelchairs, has specialized design features: it has three

straps so it can be attached to a walker or wheel chair. As

discussed infra, this product would not be used as a

backpack because the straps are unsuitable. It also has no

flap that would allow it to be closed. It has specialized

panels that give it more strength to be used to carry

heavier items, which would have little use to a person that

is not disabled.

Style 30004, a carrypak for wheelchairs, has two

circular straps that attach to the back handles of

wheelchairs. It could not be conveniently carried as a

backpack since it would be unbalanced and awkward to carry

and the straps are unsuitable for that use.

Style 30002, a carrypak for canes and crutches, is

specially designed to be attached to a cane or crutches by

means of a slip proof hook and loop system and provides the

handicapped individual with a storage pocket. Style 30005,

a carrymate for canes and crutches, is designed to be

attached to a cane or crutches by means of a slip proof hook

and loop system and provides the handicapped person with a

loop. Neither article has any other likely use than being

attached to a cane or crutches. Further, these articles can

be distinguished from the crutches in HRL 556532 because a

person who has a transient disability is unlikely to need

these articles on a short-term basis. Therefore, we find

that these styles of mobility organizers are of a class or

kind which are primarily associated with use by the

chronically or permanently handicapped.

In contrast with the above styles, style 30003, a

carrypak for walkers, has an adjustable shoulder strap that

would allow it to be carried by anyone, whether handicapped

or not, in addition to a strap that fits on a walker. The

outside sleeve states that the carrypak has a main

compartment, exterior pockets and water-repellent nylon.

None of these features are uniquely designed or useful only

for a handicapped person. Therefore, we find that style

30003 is not specially designed or adapted for the use or

benefit of handicapped persons. Accordingly, style 30003 is

not entitled to duty-free treatment under subheading

9817.00.96, HTSUS.

Classification of Style 30003 carrypak

In the alternative, counsel argues that style 30003

should be classified at subheading 9021.19.85, HTSUS, and

not at subheading 4202.92.3030, HTSUS, as Customs

determined. Subheading 9021.19.85, HTSUS provides for

Orthopedic appliances, including crutches,

surgical belts and trusses, splints and other

fracture appliances; artificial parts of the body;

hearing aids and other appliances which are worn

or carried, or implanted in the body, to

compensate for a defect or disability; parts and

accessories thereof: Artificial joints and other

orthopedic or fracture appliances; parts and

accessories thereof: other: other:

Note 2 to Chapter 90, HTSUS, provides that :

Subject to note 1 above, parts and accessories for machines,

apparatus, instruments, or articles of this chapter are to

be classified according to the following rules:

\(a\) Parts and accessories which are goods included

in any of the headings of this chapter or of

chapter 84, 85 or 91 (other than heading 8485,

8548 or 9033) are in all cases to be classified in

their respective headings;

\(b\) Other parts and accessories, if suitable for

use solely or principally with a particular kind

of machine, instrument or apparatus, or with a

number of machines, instruments or apparatus of

the same heading (including a machine, instrument

or apparatus of heading 9010, 9013 or 90310 are to

be classified with the machines, instruments or

apparatus of that kind;

\(c\) All other parts and accessories are to be

classified in heading 9033.

(Emphasis added.)

Although the two top straps of the bag render it

suitable for strapping onto a walker, it could as easily be

strapped onto a bicycle, stroller etc. The presence of the

shoulder strap further indicates that the bag is not

intended for use \"solely or principally\" with a walker as

required by Note 2(b) to Chapter 90, HTSUS. In short, for

the same reasons that style 30003 is not entitled to duty-free treatment
under subheading 9817.00.96, HTSUS, the

protestant has not established that this article is suitable

for use solely or principally with a particular kind of

machine, instrument or apparatus, which in this case is a

walker. Accordingly, we affirm Customs determination that

the style 30003 bag is properly classified at subheading

4202.92.3030, HTSUS.

HOLDING:

The three types of diabetes organizers and styles

30001, 30002, 30004, and 30005 in the mobility organizer

line are entitled to duty-free treatment under subheading

9817.00.96, HTSUS. Accordingly, the portion of the protest

relating to these articles should be granted.

With regard to style 30003 in the mobility organizer

line, we find that this article is not entitled to duty-free

treatment under subheading 9817.00.96, HTSUS, or

classification in subheading 9021.19.85, HTSUS. It is

properly classified at subheading 4202.92.3030, HTSUS.

Accordingly, the portion of the protest relating to this

article should be denied.

In accordance with Section 3a(11)(b) of Customs

Directive 099 3550-065, dated August 4, 1993, this decision

should be attached to Customs Form 19, Notice of Action, and

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 this decision. Sixty days from the date

of this decision, the Office of Regulations and Rulings will

take steps to make the decision available to Customs

personnel via the Customs Rulings Module in ACS and to the

public via the Diskette Subscription Service, the Freedom of

Information Act, and other public access channels.

Sincerely,

John Durant, Director

Commercial Rulings Division