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HQ 557529




March 8, 1994

CLA-2 CO:R:C:S 557529 MLR

CATEGORY: CLASSIFICATION

TARIFF NO.: 9817.00.96

Ms. Susan A. Schreter
President
Caring Products International Inc.
315 East 86th Street
Suite 3PE
New York, New York 10028

RE: Eligibility under the Nairobi Protocol; specially designed or adapted for the handicapped; adult diaper; incontinence; New York Ruling Letter (NYRL) 883811; revocation

Dear Ms. Schreter:

This is in reference to your letter of July 30, 1993, requesting reconsideration of New York Ruling Letter (NYRL) 883811 dated April 16, 1993, to examine adult diapers for possible duty-free treatment under subheading 9817.00.96, Harmonized Tariff Schedule of the United States (HTSUS). A sample was submitted with your request, as well as a sample of a competitor's diaper. Pursuant to section 625, Tariff Act of 1930 (19 U.S.C. 1625), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993) (hereinafter section 625), notice of the proposed revocation of NYRL 883811 was published January 26, 1994, in the Customs Bulletin, Volume 28, Number 4.

FACTS:

The article at issue is referred to as an "institutional adult diaper" ("diaper") which allegedly is designed to effectively manage serious, chronic incontinence problems, and, therefore, specifically benefit health care institutions and the chronically incontinent patients they serve. The diaper consists of a light-weight, 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 a super-absorbent, ultra-thin and disposable insert pad that is sold separately from the diaper and which is not imported. The channel secures the pad without pins, adhesive tape, snaps, belts, or other attachment devices. The patent-pending channel is stated to serve as a temporary container for moisture not yet absorbed by the pad or as a final barrier against leaks if the pad is filled to capacity. The diaper is stated to be washable, breathable, and provides discreet protection for both men and women. The diaper and the disposable insert pad will be marketed to hospitals, nursing homes, and acute and sub-acute health care facilities. The diaper will be imported from Canada.

ISSUE:

Whether the adult diaper is "specially designed or adapted" for the handicapped within the meaning of the Nairobi Protocol, and, therefore, eligible for duty-free treatment under subheading 9817.00.96, HTSUS.

LAW AND ANALYSIS:

The Nairobi Protocol to the Agreement on the Importation of Educational, Scientific, and Cultural Materials Act of 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, 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."

U.S. Note 4(b), subchapter XVII, Chapter 98, HTSUS, which establishes limits on classification of products in these subheadings, states as follows:

(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 have previously ruled that a person suffering from chronic incontinence is physically handicapped as that term is defined in U.S. Note 4(a) to Subchapter XVII. See Headquarters Ruling Letter (HRL) 085092 dated May 10, 1990; and HRL 085094 dated May 10, 1990. Therefore, the primary issue regarding the article at issue is whether it is "specially designed or adapted" for the use or benefit of the handicapped within the meaning of the Nairobi Protocol.

In NYRL 883811, the diaper was classified under subheading 6108.21.0010, HTSUS, which provides for: Women's or girls' slip, petticoats, brief, panties,... and similar articles, knitted or crocheted: briefs and panties: of cotton, women's. You now request that this ruling be revoked and that the diaper be reclassified under subheading 9817.00.96, HTSUS. NYRL 883811 compared the diaper with an incontinent pant classified under subheading 9817.00.96, HTSUS, in HRL 085691 dated April 18, 1990. In HRL 085691, the sample was a brief with an outer shell of knit polyester fabric with a green vinyl covering, a liner, and an interlining. The brief was secured for wear by metal snaps which could be adjusted for fit. When fitted and worn properly, the outer shell fabric prevented leakage. It was stated that this garment is used by persons suffering from a permanent or chronic impairment, as opposed to an acute or transitory impairment. In contrast, the diaper in NYRL 883811 and at issue here, did not appear to be similar to the heavy multi-layered brief described in HRL 085691 or suitable for chronically or permanent incontinent individuals, but rather appeared to provide some protection when used with a pad and be of the type used for postpartum or postoperative therapy and relatively mild incontinence problems.

We have also considered several other cases involving adult diapers. See HRL 088279 dated March 5, 1991; HRL 088761 dated March 5, 1991; and HRL 085092 dated May 10, 1990. In each of these rulings, the diapers were similar to the one in HRL 085691, in that some sort of vinyl was used to prevent leakage. In HRL 085092, it was also pointed out that the expense associated with purchasing and properly caring for the med-i-brief would not make it feasible for an individual to use with acute or transitory incontinence based on cost alone. This ruling also reconsidered NYRL 846983 dated December 5, 1989, which classified a containment pad under subheading 6210.50.2050, HTSUS. In all of these rulings, it was found that the article under consideration was durable and well constructed, and designed for long-term use over a long period of time, as opposed to a disposable incontinent care product.

In this case, we also find the diaper to be durable and well constructed, and designed for repeated use over a long period of time. Although the diaper is not as bulky as the heavy multi-layered brief described in HRL 085691, this alone does not mean that the diaper is not suited for individuals with chronic or permanent incontinence. As we stated in HRL 556532 dated June 18, 1992, in regard to some canes which were stylish and had an attractive permanized finish, there is no restriction on articles for the handicapped being "stylish"; however, if style dominates as the essential character of the article, this is a significant indication that it is not an article for the handicapped. Here, the diaper does not have to be bulky to be effective. Furthermore, although the diaper does not have a vinyl coating or lining as in the rulings above, the channel system is composed of a porous polyester fabric which prevents leakage. NYRL 883811 also noted that the diaper may be used for relatively mild incontinence problems. These problems may nonetheless be permanent and chronic, and the fact that the diaper could be used for postpartum or postoperative therapy does not disqualify it from subheading 9817.00.96, HTSUS, treatment.

HOLDING:

On the basis of the information and sample submitted, the adult diaper is considered to be an article specially designed or adapted for the handicapped, and, therefore, eligible for duty-free treatment under subheading 9817.00.96, HTSUS.

NYRL 883811 dated April 16, 1993, is hereby revoked.

In accordance with section 625, this ruling will become effective 60 days after its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to section 623 does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations {19 CFR

Sincerely,

John Durant, Director

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