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NY 808052




March 24, 1995

CLA-2-94:S:N:N3:119 808052

CATEGORY: CLASSIFICATION

TARIFF NO.: 9404.21.0000; 9404.90.2000; 9817.00.96

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

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