CLA-2 R:C:S 558958 KKV

Ms. Christine Carville
Operations Manager
C.P. International, Inc.
19th Floor
250 Park Avenue
New York, New York 10177

RE: Eligibility under the Nairobi Protocol; specially designed or adapted for the handicapped; adult diaper; youth sizes; incontinence

Dear Ms. Carville:

This is in response to your letter of December 19, 1994, which requests a ruling concerning the eligibility of youth sizes of adult diapers, imported from Canada, for duty-free treatment under subheading 9817.00.96, Harmonized Tariff Schedule of the United States (HTSUS). A sample was submitted with your request.

FACTS:

The article under consideration is referred to as an "institutional adult diaper" which has been "sized down for older children to young adults" ("diaper") which is allegedly designed to effectively manage serious, chronic incontinence problems of children. It is stated there exists a sizeable number of incontinent children, ages 4 to 12, suffering from medical conditions (i.e., Spina Bifida, Cerebral Palsy, Down Syndrome), which are accompanied by chronic incontinence. It is further stated that the diapers currently available are designed to fit either infants or adults and therefore, are either too small or too big. Identical, but for size, to the adult diaper which was the subject of a previous ruling (Headquarters Ruling Letter (HRL) 557529, dated March 8, 1994), the diaper consists of a light-width, 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 the same super-absorbent, ultra-thin disposable insert pad that is sold separately from the diaper for use with the adult diaper. The disposable insert pad is not imported.

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The channel secures the pad without pins, adhesive tape, snaps, belts or other attache devices. It has been asserted that the channel serves as a temporary container for moisture which has not yet been absorbed by the pad and, in addition, provides a final barrier against leaks if the pad is filled to capacity. The diaper will be imported from Canada.

ISSUE:

Whether the children's diaper is "specially designed or adapted" for the handicapped within the meaning of the Nairobi Protocol, Annex E, to the Florence Agreement, as codified in the Education, Scientific, and Cultural Materials Act of 1982, and therefore eligible for duty-free treatment under subheading 9817.00.96.

LAW AND ANALYSIS:

The Nairobi Protocol, Annex E, to the Florence Agreement, as codified by the United States Congress as the Education, Scientific, and Cultural Materials Act of 1982 (Pub.L. 97-446, 96 Stat. 2346(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 of the Harmonized Tariff Schedule of the United States (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."

It has been previously established that a person suffering from chronic incontinence is "physically handicapped" within the meaning of U.S. Note 4(a), subchapter XVII, Chapter 98 HTSUS (see Headquarters Ruling Letter 085092, dated May 10, 1990, and Headquarters Ruling Letter 085094, dated May 10, 1990).

In Treasury Decision 92-77 (Customs Bulletin, Vol. 26 (1992)), Customs addressed the the implementation of the duty-free provisions of the Nairobi Protocol, and discussed the eligibility requirements for duty-free treatment. With regard to whether an article has been "specially designed or adapted" for the handicapped, Customs stated the following:

A primary factor to be considered concerns the physical properties of the article itself, i.e., whether the article is easily distinguishable,

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by properties of the design and the corresponding use specific to this unique design from articles useful to non-handicapped individuals. If an article is solely dedicated use by the handicapped, e.g. pacemakers or hearing aids, then this is conclusive evidence that the articles are "specially designed or adapted" for the handicapped for purposes of the Nairobi Protocol.

In a previous ruling (HRL 557529, dated March 8, 1994) regarding the adult size of the article under consideration, Customs found that the adult diaper was durable, well constructed and designed for repeated use over a long period of time. We determined that, as the diaper was designed for use by individuals suffering from chronic incontinence, the article was "specially designed or adapted" for the handicapped within the meaning of the Nairobi Protocol and the article was granted duty-free status under 9817.00.96, HTSUS.

The article under consideration contains design features identical to that of the adult diaper. The "channel" system with its corresponding disposable pad are design features from which great benefit may be derived from those individuals suffering from chronic incontinence, but are features of marginal utility to a non-handicapped person.

The utility of the article to a non-handicapped person is a relevant consideration to another factor to be considered as set forth by T.D. 92-77: the "probability of general public use." While some form of diaper is normally worn by both handicapped and non-handicapped infants, the article under consideration is too large to be worn by infants. As the non-handicapped infant ages and matures, the need for the protection that a diaper provides diminishes, rendering the probability of general public use of the diaper unlikely.

Additional insight regarding the eligibility of the article for duty-free treatment by the use of other factors set forth by T.D. 92-77 for analysis, namely: whether an article is imported by manufacturers or distributors recognized or proven to be involved in this class or kind of articles for the handicapped, and, whether the article is sold in specialty stores which serve handicapped individuals. Here, as our previous ruling demonstrates, the importer of the article under consideration, C.P. International, Inc. (Caring Products International) is recognized as a party involved in the importation of articles for the benefit of the handicapped. Additionally, we are informed that the diaper is distributed for sale in DME (Durable Medical Equipment) stores, which are primarily funded through Medicare reimbursement, as well as other home healthcare suppliers.

U.S. Note 4(b), subchapter XVII, Chapter 98, HTSUS, establishes certain limitations on the classification of products in these subheadings, stating:

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(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 note that, in light of the design features of the diaper which render it suitable for individuals with chronic or permanent incontinence, the fact that it could also be used for postpartum or postoperative therapy does not disqualify it from receiving duty-free status under subheading 9817-0096, HTSUS.

HOLDING:

On the basis of the information and sample submitted, the children's diaper is considered to be an article "specially designed or adapted for the handicapped," within the meaning of the Nairobi Protocol, Annex E, to the Florence Agreement, as codified in the Education, Scientific, and Cultural Materials Act of 1982, and thus, is eligible for duty-free treatment under subheading 9817.00.96, HTSUS.

Sincerely,

John Durant, Director
Tariff Classification
Appeals Division