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