CLA-2 CO:R:C:S 557529 MLR
Ms. Susan A. Schreter
President
Caring Products International Inc.
315 East 86th Street
Suite 3PE
New York, New York 10028
RE: Eligibility under the Nairobi Protocol; specially designed
or adapted for the handicapped; adult diaper; incontinence;
New York Ruling Letter (NYRL) 883811; revocation
Dear Ms. Schreter:
This is in reference to your letter of July 30, 1993,
requesting reconsideration of New York Ruling Letter (NYRL)
883811 dated April 16, 1993, to examine adult diapers for
possible duty-free treatment under subheading 9817.00.96,
Harmonized Tariff Schedule of the United States (HTSUS). A
sample was submitted with your request, as well as a sample of a
competitor's diaper. Pursuant to section 625, Tariff Act of 1930
(19 U.S.C. 1625), as amended by section 623 of Title VI (Customs
Modernization) of the North American Free Trade Agreement
Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186
(1993) (hereinafter section 625), notice of the proposed
revocation of NYRL 883811 was published January 26, 1994, in the
Customs Bulletin, Volume 28, Number 4.
FACTS:
The article at issue is referred to as an "institutional
adult diaper" ("diaper") which allegedly is designed to
effectively manage serious, chronic incontinence problems, and,
therefore, specifically benefit health care institutions and the
chronically incontinent patients they serve. The diaper consists
of a light-weight, durable stretch cotton or polyester shell with
a water-resistant elasticized "channel" system which is formed
from either porous polyester or cotton fabric stitched over the
center of the diaper. The diaper with its channel system is used
with a super-absorbent, ultra-thin and disposable insert pad that
is sold separately from the diaper and which is not imported.
The channel secures the pad without pins, adhesive tape, snaps,
belts, or other attachment devices. The patent-pending channel
is stated to serve as a temporary container for moisture not yet
absorbed by the pad or as a final barrier against leaks if the
pad is filled to capacity. The diaper is stated to be washable,
breathable, and provides discreet protection for both men and
women. The diaper and the disposable insert pad will be marketed
to hospitals, nursing homes, and acute and sub-acute health care
facilities. The diaper will be imported from Canada.
ISSUE:
Whether the adult diaper 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.
We have previously ruled that a person suffering from
chronic incontinence is physically handicapped as that term is
defined in U.S. Note 4(a) to Subchapter XVII. See Headquarters
Ruling Letter (HRL) 085092 dated May 10, 1990; and HRL 085094
dated May 10, 1990. Therefore, the primary issue regarding the
article at issue is whether it is "specially designed or adapted"
for the use or benefit of the handicapped within the meaning of
the Nairobi Protocol.
In NYRL 883811, the diaper was classified under subheading
6108.21.0010, HTSUS, which provides for: Women's or girls' slip,
petticoats, brief, panties,... and similar articles, knitted or
crocheted: briefs and panties: of cotton, women's. You now
request that this ruling be revoked and that the diaper be
reclassified under subheading 9817.00.96, HTSUS. NYRL 883811
compared the diaper with an incontinent pant classified under
subheading 9817.00.96, HTSUS, in HRL 085691 dated April 18, 1990.
In HRL 085691, the sample was a brief with an outer shell of knit
polyester fabric with a green vinyl covering, a liner, and an
interlining. The brief was secured for wear by metal snaps which
could be adjusted for fit. When fitted and worn properly, the
outer shell fabric prevented leakage. It was stated that this
garment is used by persons suffering from a permanent or chronic
impairment, as opposed to an acute or transitory impairment. In
contrast, the diaper in NYRL 883811 and at issue here, did not
appear to be similar to the heavy multi-layered brief described
in HRL 085691 or suitable for chronically or permanent
incontinent individuals, but rather appeared to provide some
protection when used with a pad and be of the type used for
postpartum or postoperative therapy and relatively mild
incontinence problems.
We have also considered several other cases involving adult
diapers. See HRL 088279 dated March 5, 1991; HRL 088761 dated
March 5, 1991; and HRL 085092 dated May 10, 1990. In each of
these rulings, the diapers were similar to the one in HRL 085691,
in that some sort of vinyl was used to prevent leakage. In HRL
085092, it was also pointed out that the expense associated with
purchasing and properly caring for the med-i-brief would not make
it feasible for an individual to use with acute or transitory
incontinence based on cost alone. This ruling also reconsidered
NYRL 846983 dated December 5, 1989, which classified a
containment pad under subheading 6210.50.2050, HTSUS. In all of
these rulings, it was found that the article under consideration
was durable and well constructed, and designed for long-term use
over a long period of time, as opposed to a disposable
incontinent care product.
In this case, we also find the diaper to be durable and well
constructed, and designed for repeated use over a long period of
time. Although the diaper is not as bulky as the heavy multi-layered brief described in HRL 085691, this alone does not mean
that the diaper is not suited for individuals with chronic or
permanent incontinence. As we stated in HRL 556532 dated June
18, 1992, in regard to some canes which were stylish and had an
attractive permanized finish, there is no restriction on articles
for the handicapped being "stylish"; however, if style dominates
as the essential character of the article, this is a significant
indication that it is not an article for the handicapped. Here,
the diaper does not have to be bulky to be effective.
Furthermore, although the diaper does not have a vinyl coating or
lining as in the rulings above, the channel system is composed of
a porous polyester fabric which prevents leakage. NYRL 883811
also noted that the diaper may be used for relatively mild
incontinence problems. These problems may nonetheless be
permanent and chronic, and the fact that the diaper could be used
for postpartum or postoperative therapy does not disqualify it
from subheading 9817.00.96, HTSUS, treatment.
HOLDING:
On the basis of the information and sample submitted, the
adult diaper 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.
NYRL 883811 dated April 16, 1993, is hereby revoked.
In accordance with section 625, this ruling will become
effective 60 days after its publication in the Customs Bulletin.
Publication of rulings or decisions pursuant to section 623 does
not constitute a change of practice or position in accordance
with section 177.10(c)(1), Customs Regulations {19 CFR
177.10(c)(1)}.
Sincerely,
John Durant, Director
Commercial Rulings Division
cc: Brian Burtnik, NIS
Jacques Preston, NIS