CLA-02 RR:TC:SM 559916 KKV
Mr. John L. Sease
D.J. Powers Company
24 North Market St.
Suite 203
Charleston, SC 29401
RE: Eligibility under the Nairobi Protocol; Articles
specially designed or adapted for the handicapped;
patient hospital gown
Dear Mr. Sease:
This is in response to your letter of June 16, 1996
(and subsequent submission received August 6, 1996) , on
behalf of Eastern Imports Limited, which requests
reconsideration of New York Ruling PD A82009, Supplement 1,
dated May 9, 1996. A sample was submitted for our
consideration.
FACTS:
The merchandise at issue consists of woven cotton
hospital patient gowns, with short sleeves and two rear
ties, which are imported from Pakistan. New York Ruling PD
A82009, dated April 22, 1996, held that the merchandise is
classifiable under subheading 6211.42.0081, Harmonized
Tariff Schedule of the United States (HTSUS), which provides
for "track suits, ski-suits and swimwear; other garments:
other garments, women's or girls': of cotton: other." New
York Supplemental decision 1, PD A82009, dated May 9, 1996,
held that the articles did not qualify for duty-free
treatment under subheading 9817.00.96, HTSUS, as "articles
specially designed or adapted for the use or benefit of the
blind or other physically or mentally handicapped persons."
You indicate that Eastern Imports Limited does not sell
the imported articles to hospitals and nursing homes, but
imports the articles for Medline Industries and Harbor
Linen, both of which distribute the subject patient gowns,
as well as sheets, towels, barmops, and bibs, to hospitals
and nursing homes.
ISSUE:
Whether the submitted cotton patient gowns are
"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.
However, U.S. Note 4(b), subchapter XVII, Chapter 98,
HTSUS, establishes certain limitations on the classification
of products in these subheadings, stating:
(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.
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."
Although the legislative history of the Nairobi
Protocol discusses the concerns of Congress that the design,
modification or adaption of an article must be significant,
so as to clearly render the article for use by handicapped
individuals, no specific definition of these terms was
established by Congress. See Senate Report (Finance
Committee) No. 97-564, September 21, 1982. See also HQ
951004, dated March 3, 1992. Because it is difficult to
establish a clear definition of what is "specially designed
or adapted," various factors must be utilized on a case-
by-case basis to determine whether a given article is
"specially designed or adapted" within the meaning of this
statute.
In Treasury Decision 92-77 (Customs Bulletin, Vol. 26
(1992)), Customs addressed 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, 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 for 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.
You contend that the following features of the patient gowns
under consideration are indicative of such design features.
1) The garment utilizes two rear tie closures
instead of snaps or buttons that may be difficult
or impossible for patients to use.
2) The loose fit of the garment makes it possible
for the garment to be changed without disturbing
the patient or requiring him or her to stand.
3) The length of the gown is designed to ease the
use of bedpans and other hospital equipment.
While these design features are of great utility to
handicapped individuals, the garment is not dedicated solely
for use by the handicapped. Thus, the "specific design"
factors must be considered in conjunction with other
relevant factors which are discussed below.
The utility of the article to a non-handicapped person,
i.e, the "probability of general public use" is another
relevant factor set forth by T.D. 92-77. In this regard,
you reference Headquarters Ruling Letter (HRL) 556449, dated
May 5, 1992, stating "[t]he determination was that the
likelihood of the general public utilizing bedside toilet or
dressing articles is remote" and that like those articles,
"the patient gowns also have little chance of being used by
the general public."
In HRL 556449, supra, Customs articulated the
principle of "probability of general public use" in
determining whether an article is "specially designed or
adapted" within the meaning of the Nairobi Protocol. The
following factors were considered to be relevant in making
this determination: 1) whether any characteristics are
present that create a substantial probability of use by the
chronically handicapped; 2) whether the article is easily
distinguishable from articles useful to the general public;
3) whether use of the article by the general public is so
improbable that such use would be fugitive; 4) whether use
of the articles by the general public would be inconvenient;
5) whether articles are imported by manufacturers or
distributors recognized or proven to be involved in this
class or kind of articles for the handicapped; 6) whether
the articles are sold in speciality stores which serve
handicapped individuals; and 7) whether the condition of
the articles at the time of importation indicate that these
articles are for the handicapped.
In that case, Customs considered a variety of articles,
including "bedside toilet or dressing articles" to which
your letter refers. We note that the articles at issue in
HRL 556449 were not articles of clothing, as in the instant
case, but, instead, included toilet support arms, a "Kommod"
bedside toilet, toilet seat raisers and a "Strumpalatt" or
stocking aid used to used to guide the foot into the
stocking. It was with regard to these articles, not
articles of clothing, that Customs stated "the likelihood of
the general public utilizing the bedside toilet, or the
dressing aids at issue is remote" and held that "there is a
strong indication that these articles are specially designed
or adapted for the handicapped."
In analyzing the probability of general public use to
the articles under consideration, we note that the patient
gowns are not designed for street wear, but for use in a
medical environment (e.g, hospitals, nursing homes,
doctors'offices, birthing centers, etc.) Within this
particular environment, there exists not only a substantial
probability of use by the chronically handicapped, but also
an equally probability that the articles will also be used
by individuals hospitalized, or otherwise being treated, for
acute or transient disability. Moreover, the articles are
also suitable for use in medical offices for those non-handicapped individuals undergoing diagnostic examination
(e.g., x-rays, etc.). Because the subject garments are
equally suitable for use by a large population of
patients, including those who suffer from acute or transient
disability and the non-handicapped, the use of the garments
in this manner is not so improbable as to constitute a
fugitive use; therefore, we are unable to conclude that the
garments will be used predominantly by individuals suffering
from a permanent or chronic physical or mental impairment,
as required by U.S. Note 4(a), subchapter XVII, Chapter 98,
HTSUS.
With regard to the other factors set forth in T.D. 92-77, supra, and HRL 556449, no information has been submitted
which would indicate that the importer of the hospital
patient gowns, Eastern Imports, Ltd., is recognized as a
party involved in the importation of articles for the
benefit of the handicapped. Although you have attached New
York ruling NY 803686, which addressed the eligibility of
adult bibs for entry under subheading 6217.10.0010, HTSUS,
and have indicated that the requesting party in both cases
is the same, we note that the fact that a firm has filed two
requests for a binding ruling under subheading 9817.00.96,
HTSUS, does not indicate that it is "recognized" as a party
involved in the importation of articles for the benefit of
the handicapped. Additionally, the patient gowns are not
sold in speciality stores which serve handicapped
individuals, but are sold to other firms who distribute them
to hospitals and nursing homes, along with sheets, towels,
barmops and bibs. Lastly, there is nothing to suggest that
the condition of the articles at the time of importation
would indicate that the articles are specially designed or
adapted for use by the handicapped, i.e., those suffering
chronic and permanent disability, rather than those
individuals hospitalized or otherwise being treated for
acute or transient disability or undergoing diagnostic
examination. Accordingly, it is our decision that the
subject hospital patient gowns are not "articles specially
designed or adapted for the handicapped," and, therefore,
are not eligible for duty-free treatment under subheading
9817.00.96, HTSUS. New York Ruling PD A82009, Supplement
1, dated May 9, 1996, is hereby affirmed.
HOLDING:
On the basis of the information and sample submitted,
the cotton patient hospital gowns which equally suitable for
use by a large population of patients, including those who
suffer chronic and permanent disability, those who suffer
from acute or transient disability and non-handicapped
individuals undergoing diagnostic examination, are not
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, are not eligible for duty-free treatment
under subheading 9817.00.96, HTSUS.
A copy of this ruling letter should be attached to the
entry documents filed at the time this merchandise is
entered. If the documents have been filed without a copy,
this ruling should be brought to the attention of the
Customs officer handling the transaction.
Sincerely,
John Durant, Director
Tariff Classification Appeals Division