HQ 966791
January 16. 2004
CLA-2 RR:CR:GC 966791 AM
Port Director
Bureau of Customs and Border Protection
Pittsburgh International Airport
P.O. Box 12445
Pittsburgh, PA 15231-0445
Re: Protest 1104-03-100008; Vinyl Mattress Covers
Dear Port Director:
This is our decision on Protest 1104-03-100008, filed by counsel, on behalf of American Textile Co., against your decision in the classification and duty determination, under the Harmonized Tariff Schedule of the United States (HTSUS), of vinyl mattress covers. We have also considered arguments presented to Headquarters in a telephone conference with counsel and a representative from the importer on January 7, 2004, as well as those presented in a supplemental submission by e-mail, dated January 12, 2004.
FACTS:
The imported merchandise consists of zippered and fitted vinyl mattress covers for twin, full, queen and king size beds. A sample of a zippered twin mattress cover states on the packaging the following:
Deep fit: Fits mattresses up to 12 in. deep
Waterproof protection for the entire family
Stainproof and non-allergenic
Zippered construction protects entire mattress
Wipes clean with a damp cloth
The packaging also reveals different brand names such as KMart, Fred Meyer, Kohl’s, ShopKo, Zeller’s, and Jubilee Bed Bath Home. Additionally, the product is sold to a medical supply company and a medical center. The subject merchandise was shipped with vinyl pillow covers in the same entry. The pillow covers are not included among the protested items.
Internet research reveals numerous web sites selling similar vinyl waterproof mattress covers ranging in price from $5.98 to $62.00. The retail price of the instant merchandise ranges from $4.44-$12.00. Descriptions of the merchandise on some of these web sites include: "ideal for incontinence (bladder control problems), allergies, and people who wish to keep their mattress clean" www.quality-time.com; "Fitted covers protect from spills, stains, bedwetting, allergies" www.harrietcarter.net; and "protects against spill's and liquids" http://shop.store.yahoo.com/bedbathstore/vinzipmatcov.html.
Protestant agrees with the classification of the merchandise in subheading 3924.90.10, HTSUS, the provision for "Tableware, kitchenware, other household articles and toilet articles, of plastics: Other: Curtains and drapes, including panels and valances; napkins, table covers, mats, scarves, runners, doilies, centerpieces, antimacassars and furniture slipcovers; and like furnishings." However, protestant believes that subheading 9817.00.96, HTSUS, the provision for "Articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons; parts and accessories (except parts and accessories of braces and artificial limb prosthetics) that are specially designed or adapted for use in the foregoing articles: Other," should govern the duty rate under the Nairobi Protocol.
ISSUE:
Whether vinyl mattress covers are entitled to duty free treatment under the Nairobi Protocol as articles specially designed for the use or benefit of the physically handicapped.
LAW AND ANALYSIS:
Merchandise imported into the U.S. is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context that requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs.
In interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are (official interpretation of the Harmonized System at the international level) generally indicative of the proper interpretation of the HTSUS. See T.D. 89 80, 54 Fed. Reg. 35127 (August 23, 1989).
The dispute centers around whether the following provision applies to the classification of this product:
9817 Articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons; parts and accessories (except parts and accessories of braces and artificial limb prosthetics) that are specially designed or adapted for use in the foregoing articles.
The Nairobi Protocol to the Agreement on the Importation of Educational, Scientific, and Cultural Materials Act of 1982, established duty-free treatment for certain articles for the handicapped. Presidential Proclamation 5978 and section 1121 of the Omnibus Trade and Competitive 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 provide 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, subchapter XVII, Chapter 98, HTSUS, states, in pertinent part, the following:
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.
Subheadings 9817.00.92, 9817.00.94 and 9817.00.96 do not cover--
articles for acute or transient disability; . . .
Many rulings have established adult chronic incontinence as a disability, and products such as adult diapers and incontinence pads as being specially designed for people with this disability (See HQs 562506, dated October 28, 2002, 088279, dated March 5, 1991, 560278, dated October 7, 1997, 960056, dated January 30, 1997, 557529, dated March 8, 1994, 558958, dated October 6, 1995, 085092, dated May 10, 1990, and 085691, dated April 18, 1990.)
However, the vinyl mattress covers at issue are different from well established incontinence products in many ways. First, the incontinence products of the above rulings were sold to hospitals and skilled nursing facilities for use by chronically incontinent patients in addition to their home use. The instant merchandise is almost exclusively retail merchandise sold in department stores. Its cost is relatively low which makes the product more accessible to the general public than specialized incontinence products.
Second, both incontinence pads and adult diapers consist of a layer of absorbent material, in addition to the vinyl or other waterproof layer, which functions to “absorb urine to keep it from . . . irritating the skin of the patient” (NY J83361, see also, HQ 562506, dated October 28, 2002). In contrast, the vinyl mattress cover actually does nothing vis-à-vis the incontinent individual. It merely protects the mattress of the individual’s bed.
Third, incontinence pads and adult diapers are, by design, only meant to contain wetness from incontinence. The mattress covers, like the pillow covers contained in the same shipment, cover areas of the bed that would not normally become wet due to chronic incontinence. Rather, as numerous advertisements for vinyl mattress covers on the Internet reveal, the mattress cover protects the entire mattress from moisture that may come from a myriad of sources such as sweating or spilling liquids. Unlike chronic incontinence, chronic spilling or sweating is not a disability. We believe it is highly likely that a purchaser of a new mattress, while browsing through the bedding section of a department store, might also purchase this inexpensive vinyl mattress cover to protect his or her investment from any moisture that might occur. We see no indication that the mattress cover is specially designed for the physically handicapped.
Fourth, even if the mattress covers were specially designed for protection from the problems associated with incontinence, they are not specially designed for those disabled by chronic incontinence. The package reads "Waterproof protection for the entire family." The protestant has not submitted any documentation which establishes, or indicates, that the mattress covers are specifically marketed for the physically handicapped.
We are aware of the mandate of Congress, cited by the courts, for "'more liberalized treatment' in its enactments based upon the Nairobi Protocol." Starkey Laboratories, Inc. v. US, 22 CIT 360 (1998) (citing Travenol Laboratories, Inc. v. US, 17 CIT 69, 77, 813 F.Supp. 840, 847(1993)). However, based upon the above analysis, we find that the protestant has not established that the mattress covers are specially designed for the use or benefit of the physically handicapped. Therefore, the mattress covers are not described in heading 9817, HTSUS.
HOLDING:
The vinyl mattress covers are classified only in subheading 3924.90.10, HTSUS, the provision for "Tableware, kitchenware, other household articles and toilet articles, of plastics: Other: Curtains and drapes, including panels and valances; napkins, table covers, mats, scarves, runners, doilies, centerpieces, antimacassars and furniture slipcovers; and like furnishings." They are not described in heading 9817, HTSUS.
You are directed to DENY the protest.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550 065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B Harmon, Director
Commercial Rulings Division