CLA-2 RR:CR:SM 558958 KKV
Ms. Jenny Gillis
Babykins Products (1992) Ltd.
8171 Seafair Dr.
Richmond, British Columbia
V7C 1X3
CANADA
RE: Country of origin of adult waterproof pull-on
pants; 19 CFR 102.21; textile or apparel article;
produced exclusively of domestic materials; tariff
shift; eligibility under the Nairobi Protocol;
specially designed or adapted for the handicapped;
subheading 9817. 00.96; incontinence
Dear Ms. Gillis:
This is in response to your letter dated September 25,
1996 (received by our office on January 3, 1997), which
requests a binding ruling regarding the country of origin
and eligibility of certain adult waterproof pull-on pants
for duty-free treatment under subheading 9817.00.96,
Harmonized Tariff Schedule of the United States (HTSUS),
upon importation from Canada. A sample of each of the five
styles was submitted with your request.
FACTS:
The article under consideration is referred to as
"adult pull-on pants" which is allegedly designed to
effectively manage serious, chronic incontinence problems of
adults. Samples of five different styles have been
submitted, all of which consist of four or five pattern
pieces which are stated to be "cut, make and trim in
Canada":
Style No. Composition and Tariff Classification
#10200 Plastic coated fabric of 100% woven polyester
fabric from Holland, classifiable under
subheading 6210.50.5055, HTSUS, is cut into
four
component pattern pieces and assembled
together with Canadian-origin lycra
binding into a completed article.
#10300 Plastic coated fabric of 100% polyester fabric
from Taiwan, classifiable under subheading
6210.50.5055, HTSUS, is cut into four
component pattern pieces and assembled
together with Canadian-origin lycra binding
into a completed article.
#10600 Plastic coated fabric of 100% woven nylon
fabric from Taiwan, classifiable under
subheading 6210.50.5055, HTSUS, is cut into
five component pattern pieces and assembled
together with Canadian-origin lycra binding
into a completed article.
#10300V 100% vinyl fabric from Canada, classifiable
under subheading 3926.20.9050, HTSUS, is cut
into four component pattern pieces and
assembled together with Canadian-origin lycra
binding into a completed article.
#11000 100% natural rubber fabric from the U.S.,
classifiable under subheading 4015.90.0050,
HTSUS, is cut into four component pattern
pieces and assembled together with Canadian-origin lycra binding into a completed article.
It is stated that the products under consideration,
referred to as "adult pull-on pants," are made for the
incontinent market and are designed to go over adult cloth
diapers. Different fabrics are utilized in the construction
of the garments to provide a variety of levels of
protection. Upon importation into Canada from various
countries, the imported fabric (or domestic fabric, in the
case of garments represented by style #10300V) is cut into
component pieces which are sewn and assembled together with
Canadian-origin lycra binding into finished garments.
Essential to the design of all five styles is the need for a
main one-piece pattern with no side or crotch seams for
moisture to transfer or wick to outer clothing. Also
essential is the elastic binding at the waist and leg
openings, considerably tighter than normal trim, which
prevents moisture from seeping out at these openings.
ISSUES:
I. What is the country of origin of the adult-pull-on pants?
II. Whether adult pull-on pants 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, HTSUS.
LAW AND ANALYSIS
I. Country of origin
On December 8, 1994, the President signed into law the
Uruguay Round Agreements Act. Section 334 of that Act
(codified at 19 U.S.C. 3592) provides new rules of origin
for textiles and apparel entered, or withdrawn from
warehouse, for consumption, on and after July 1, 1996. On
September 5, 1995, Customs published section 102.21, Customs
Regulations (19 CFR 102.21), in the Federal Register,
implementing Section 334 (60 FR 46188). Thus, effective
July 1, 1996, the country of origin for a textile or apparel
product is determined by a sequential application of the
origin rules set forth in paragraphs (c)(1) through (5) of
section 102.21. As a general rule, under the new textile
origin rules, where a textile or apparel article is
assembled in one country from components cut to shape in
another country, the country of assembly will be the origin
of the article. Cutting fabric to shape no longer confers
origin.
Thus, the initial question to be addressed is whether
the adult pull-on pants at issue qualify as a "textile and
apparel good" for purposes of 19 CFR 102.21. It has been
determined that Style #10200, #10300 and #10600 are made up
of fabric from heading 5903, HTSUS, and are classifiable
under subheading 6210.50.5055, HTSUS, which provides for
"Garments, made up of fabrics of heading 5602, 5603, 5903,
5906 or 5907: other women's or girls' garments: of man-made
fibers: other: other." Style # 10300V is classifiable under
subheading 3926.20.98050, HTSUS, which provides for "Other
articles of plastics and articles of other materials of
headings 3901 to 3914: articles of apparel and clothing
accessories (including gloves): other: other." Style #
11000 is classifiable under subheading 4015.90.0050, HTSUS,
which provides for "Articles of apparel and clothing
accessories (including gloves), for all purposes, of
vulcanized rubber other than hard rubber: other: other."
Section 102.21(b)(5,), Customs Regulations (19 CFR
102.21(b)(5)), provides that a "textile or apparel product"
is any good classified in Chapters 50 through 63, HTSUS, and
any good classifiable under certain enumerated HTSUS
headings or subheadings, which include neither heading 3926
nor heading 4015, HTSUS. Thus, under the facts presented,
the pull-on pants represented by Style # 10200, #10300 and
#10600, which are classifiable under subheading
6210.50.5055, HTSUS, qualify as a "textile and apparel good"
for purposes of the 19 CFR 102.21 rules of origin. The
garments represented by the remaining two styles, #10300V
and #11000 do not qualify as a "textile and apparel good"
and the origin of these articles is determined under the
NAFTA Marking Rules.
A. Style # 10200, #10300 and #10600
Section 102.21(c)(1), Customs Regulations (19 CFR
102.21(c)(1)), states that "the country of origin of a
textile or apparel product is the single country, territory,
or insular possession in which the good was wholly obtained
or produced." Inasmuch as fabric from Holland and Taiwan is
processed into garments in Canada, the subject merchandise
is not wholly obtained or produced in a single country,
territory, or insular possession, paragraph (c)(1) of
section 102.21 is inapplicable.
Section 102.21(c)(2), Customs Regulations (19 CFR
102.21(c)(2)), provides:
[w]here the country of origin of a
textile or apparel product cannot be
determined under paragraph (c)(1) of this
section, the country of origin of the
good is the single country, territory, or
insular possession in which each foreign
material incorporated in that good
underwent an applicable change in tariff
classification, and/or met any other
requirement, specified for the good in
paragraph (e) of this section.
Section 102.21(e) states "The following rules shall
apply for purposes of determining the country of origin of a
textile or apparel product under paragraph (c)(2) of this
section:"
6210.50 (3) If the good consists
of two or more component
parts, a change to an
assembled good of heading
6210 through 6212 from
unassembled components,
provided that the change is
a result of the good being
wholly assembled in a
single country, territory,
or insular possession.
Garments represented by style # 10200, #10300, and
#10600 are classified in subheading 6210.50.5055, HTSUS.
Under the facts provided, the adult pull-on pants are stated
to be "cut, make and trim" in Canada. Because the finished
garments are assembled in Canada from four (style #10200 and
#10300) or five (style #10600) fabric components which have
been cut in Canada from foreign fabric, the applicable
tariff shift rule is met and the country of origin for
garments represented by style #10200, #10300 and #10600 is
Canada, pursuant to Section 102.21(c)(2).
B. Style #10300V and #11000
Section 134.1(j), Customs Regulations (19 CFR
134.1(j)), provides that the "NAFTA Marking Rules" are the
rules promulgated for purposes of determining whether a good
is a good of a NAFTA country. Section 134.1(g), Customs
Regulations (19 CFR 134.1(g)), defines a "good of a NAFTA
country" as an article for which the country of origin is
Canada, Mexico or the United States as determined under the
NAFTA Marking Rules, set forth at 19 CFR Part 102.
Section 102.11, Customs Regulations (19 CFR 102.11),
sets forth the required hierarchy for determining whether a
good is a good of a NAFTA country for marking purposes.
This section states that the country of origin of a good is
the country in which:
(1) The good is wholly obtained or
produced;
(2 The good is produced exclusively
from domestic materials; or
(3) Each foreign material
incorporated in that good
undergoes an applicable change
in tariff classification set out
in section 102.20 and satisfies
any other applicable
requirements of that section,
and all other applicable
requirements of these rules are
satisfied.
Section 102.1(e), Customs Regulations (19 CFR 102.1(e))
defines "foreign material" as "a material whose country of
origin as determined under these rules is not the same
country or origin as the country in which the good is
produced."
Based on the information provided with regard to style
#10300V, vinyl material and lycra of Canadian origin is cut
into four pattern pieces and assembled into a finished
garment in Canada. Because the article is produced
exclusively from domestic materials in Canada, the country
of origin of garments represented by style #10300V is
Canada, pursuant to 10 CFR 102.11(a)(2).
With regard to style #11000, we are informed that
rubber fabric of U.S. origin is exported to Canada, where it
is assembled together with lycra of Canadian origin into a
finished adult pull-on pant. Because the article is
assembled in Canada with U.S. fabric, the finished article
is neither wholly obtained or produced, nor produced
exclusively from domestic materials. Accordingly, neither
19 CFR 102.11(a)(1) or 102.11(a)(2) may be used to determine
the origin of garments represented by style #11000.
Pursuant to 19 CFR 102.11(a)(3), the country of origin
of a good is the country in which each foreign material
incorporated in that good undergoes an applicable change in
tariff classification as set forth in 19 CFR 102.20, and
satisfies any other applicable requirements of that section.
In the case before us, because the finished waterproof adult
pull-on pants represented by style #11000 are classified
under 4015.90.0050, HTSUS, the change in tariff
classification must be made in accordance with section
102.20(g), Section VII: Chapters 39 through 40, heading
4015, HTSUS, which requires "[a] change to heading 4015 from
any other heading."
In the case before us, U.S.-origin rubber fabric,
initially classified under subheading 4008.21.0000, HTSUS,
is subsequently classified under subheading 4015.90.0050,
HTSUS, as a result of assembly operations in Canada.
Accordingly, the article undergoes the requisite tariff
shift and the country of origin for garments represented by
style #11000 is Canada, pursuant to 19 CFR 102.11(a)(3).
II. Eligibility of the merchandise for duty-free
treatment under subheading 8917.00.96, HTSUS
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."
However, this note 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.
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 (HRL) 085092, dated May 10, 1990, and HRL 085094,
dated May 10, 1990). Therefore, the remaining
issue for resolution is whether the articles are "specially
designed or adapted" for the use or benefit of the
handicapped within the meaning of the Nairobi Protocol.
In Treasury Decision 92-77 (26 Cust. Bull. 1, (August
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 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.
Customs has previously discussed the physical
properties of similar articles designed for use by
individuals suffering from chronic incontinence. In HRL
557529, dated March 8, 1994, Customs considered the design
features of certain adult diapers. Upon finding that they
were durable, well constructed and designed for repeated use
over a long period of time, Customs held that the articles
were "specially designed or adapted" for the handicapped
within the meaning of the Nairobi Protocol and the articles
were granted duty-free status under subheading 9817.00.96,
HTSUS. Likewise, HRL 558958, dated October 6, 1995, held
that identical diapers sized for youth were also eligible
for duty-free treatment under subheading 9817.00.96, HTSUS (
See also HRL 085691, dated April 18, 1990, HRL 085092,
dated May 10, 1990, HRL 088279 dated March 5, 1991; and HRL
08876, dated March 5, 1991 for other rulings discussing the
use of some sort of vinyl to prevent leakage in conjunction
with incontinence).
The physical properties of the adult pull-on pants
under consideration are similar to that of adult diapers.
The use of waterproof vinyl or rubber fabric, tighter than
normal waist and leg binding and the absence of side or
crotch seams 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 set forth by
T.D. 92-77, supra: the "probability of general public use."
While some form of plastic pants are normally worn by both
handicapped and non-handicapped infants with diapers, the
articles under consideration are too large to be worn by
infants. As the non-handicapped infant ages and matures,
the need for the protection that the plastic pants provide
diminishes, rendering the probability of general public use
of the waterproof pull-on pants unlikely.
We note that, in light of the design features of the
pull-on pants which render it suitable for individuals with
chronic or permanent incontinence, the fact that they could
also be used for postpartum or post-operative therapy does
not disqualify them from receiving duty-free status under
subheading 9817.00.96, HTSUS.
HOLDING:
On the basis of the information and samples submitted,
the country of origin of garments represented by style
#10200, #10300, and #10600 is Canada, pursuant to Section
102.21(c)(2), Customs Regulations (19 CFR 102.21(c)(2)).
The country of origin of garments represented by style
#10300V and #11000 is Canada, pursuant to 19 CFR
102.11(a)(3).
On the basis of the information and samples submitted,
the adult waterproof pull-on pants are considered to be
articles "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 eligible for duty-free treatment under
subheading 9817.00.96, HTSUS.
The holding set forth above applies only to the
specific factual situation and merchandise identified in the
ruling request. This position is clearly set forth in
section 19 CFR 177.9(b)(1), which states that a ruling
letter, either directly, by reference, or by implication, is
accurate and complete in every material respect.
Should it be subsequently determined that the
information furnished is not complete and does not comply
with 19 CFR 177.9(b)(1), the ruling will be subject to
modification or revocation. In the event there is a change
in the facts previously furnished, this may affect the
determination of country of origin. Accordingly, if there
is any change in the facts submitted to Customs, it is
recommended that a new ruling request be submitted in
accordance with 19 CFR 177.2.
A copy of this ruling letter should be attached to the
entry documents filed at the time the goods are 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
Commercial Rulings Division