HQ 557734

April 18, 1994

CLA-2 CO:R:C:S 557734 MLR

CATEGORY: Classification

TARIFF NO.: 9817.00.96

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