CLA-2-94:S:N:N3:119 808052
Mr. Louis J. Salerno II
1129 20th Street, N.W., Suite 400
Washington, D.C. 20036
RE: The tariff classification of pressure relief products from
Sweden
Dear Mr. Salerno:
In your letter dated March 9, 1995, you requested a tariff
classification ruling on behalf of Tempur-Pedic, Inc., Lexington,
KY.
The articles to be imported are a replacement mattress, an anatomically
shaped pillow, a wheelchair cushion and a wheelchair lumbar pad. According
to the literature furnished, all these "products are constructed from 100
percent open-cell, visco-elastic, temperature sensitive foam". They are
designed for the prevention and treatment of decubitus ulcers (or
bedsores). In addition, the pillow is said to be used in various medical
situations "to promote proper head/neck angle and support".
The applicable subheading for the replacement mattress will be
9404.21.0000, Harmonized Tariff Schedule of the United States (HTS), which
provides for mattresses: of cellular rubber or plastics, whether or not
covered. The rate of duty will be 5.4 percent.
The applicable subheading for the anatomically shaped pillow, the
wheelchair cushion and the wheelchair lumbar pad will be 9404.90.2000, HTS,
which provides for pillows, cushions and similar furnishings... other. The
rate of duty will be 6 percent.
In your letter you requested that the products under consideration be
allowed free of duty under 9817.00.96, HTS, which provides for articles
specially designed or adapted for the use or benefit of the blind or other
physically or mentally handicapped persons... other.
Chapter 98, subchapter XVII, note 4 states the following:
(a) For purposes of subheadings 9817.00.92,
9817.00.94 and 9817.00.96, 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.
(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.
The Mayo Clinic Family Health Book (c.1990) at page 1272 contains the
following paragraph:
Bedsores, also known as pressure sores or
decubitus ulcers, sometimes develop on weight-
bearing parts of the body, especially where the
bones are near the skin (in particular, the hips,
shoulder blades, elbows, base of the spine,
knees, ankles, and heels). In some individuals,
just a few hours of constant pressure can be
enough to initiate a bedsore.
It is evident that susceptibility to bedsores varies among individuals
and can develop during a short hospital stay. It is also evident that such
ulcers can be treated successfully. Decubitus ulcers per se do not
constitute a permanent or chronic physical impairment, and articles used to
prevent the development of these ulcers cannot be considered to be
specially designed for the handicapped.
You state in your letter that "a large percentage of individuals who use
these products are disabled as a result of a traumatic permanent spinal
cord injury or developmental disability such as spinal bifida, cerebral
palsy and multiple sclerosis". We do not dispute that statement but there
is also a large percentage of individuals who are not handicapped and who
use such products as the subject mattress and pillow.
Decubitus ulcers can effectively be prevented in most patients by
shifting the body every two hours. This strict monitoring of patients'
body position requires additional staffing which most hospitals cannot
afford and therefore must rely on the wide use of pressure relief
products.
The U.S. Customs Service has previously excluded from the Nairobi
Protocol free provision articles that are used to a large extent by both
the permanently handicapped and those with transient disabilities. In
Headquarters' Ruling Letter 556532 of 6-18-92, underarm crutches were
excluded, and in HRL 080239 JAS of 5-11-87, ordinary wheelchairs were also
excluded.
You cited three Customs rulings in which you argue that certain products
were classified under 9817.00.96 even though not all users of these
products were handicapped. The articles covered by these ruling were:
electrically powered invalid chairs (NY 879250 dated 10-21-92); rolling
walkers with four wheels, a seat and a basket (HQ 556977 dated 2-18-93);
and wheelchairs with various special features for handicapped children and
other age groups.
The articles covered by the rulings cited above are obviously designed
for individuals whose ability to stand or walk unaided is substantially
limited or nonexistent. The probability that these articles would be used
by nonhandicapped individuals is practically nil. These articles can
easily be distinguished from the replacement mattress and the pillow under
consideration.
Based on the above discussion, we conclude that the replacement mattress
and the anatomically shaped pillow are not eligible for free entry under
9817.00.96.
The wheelchair cushion and the wheelchair lumbar pad are intended for
the use of handicapped individuals who must spend a considerable amount of
time each day in a wheelchair. We consider these two articles to be
eligible for free entry under the provision for articles specially designed
or adapted for the use or benefit of the blind or other physically or
mentally handicapped persons... other, in subheading 9817.00.96, HTS. All
applicable entry requirements must be met including the filing of form
ITA-362P.
This ruling is being issued under the provisions of Section 177 of the
Customs Regulations (19 C.F.R. 177).
A copy of this ruling letter should be attached to the entry documents
filed at the time this merchandise is imported. 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,
Jean F. Maguire
Area Director
New York Seaport