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HQ 559916

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May 8, 1997

CLA-02 RR:TC:SM 559916 KKV

CATEGORY: CLASSIFICATION

Mr. John L. Sease
D.J. Powers Company
24 North Market St.
Suite 203
Charleston, SC 29401

RE: Eligibility under the Nairobi Protocol; Articles specially designed or adapted for the handicapped; patient hospital gown

Dear Mr. Sease:

This is in response to your letter of June 16, 1996 (and subsequent submission received August 6, 1996) , on behalf of Eastern Imports Limited, which requests reconsideration of New York Ruling PD A82009, Supplement 1, dated May 9, 1996. A sample was submitted for our consideration.

FACTS:

The merchandise at issue consists of woven cotton hospital patient gowns, with short sleeves and two rear ties, which are imported from Pakistan. New York Ruling PD A82009, dated April 22, 1996, held that the merchandise is classifiable under subheading 6211.42.0081, Harmonized Tariff Schedule of the United States (HTSUS), which provides for "track suits, ski-suits and swimwear; other garments: other garments, women's or girls': of cotton: other." New York Supplemental decision 1, PD A82009, dated May 9, 1996, held that the articles did not qualify for duty-free treatment under subheading 9817.00.96, HTSUS, as "articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons."

You indicate that Eastern Imports Limited does not sell the imported articles to hospitals and nursing homes, but imports the articles for Medline Industries and Harbor Linen, both of which distribute the subject patient gowns, as well as sheets, towels, barmops, and bibs, to hospitals and nursing homes.

ISSUE:

Whether the submitted cotton patient gowns 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.

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.

However, U.S. Note 4(b), subchapter XVII, Chapter 98, HTSUS, 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.

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."

Although the legislative history of the Nairobi Protocol discusses the concerns of Congress that the design, modification or adaption of an article must be significant, so as to clearly render the article for use by handicapped individuals, no specific definition of these terms was established by Congress. See Senate Report (Finance Committee) No. 97-564, September 21, 1982. See also HQ 951004, dated March 3, 1992. Because it is difficult to establish a clear definition of what is "specially designed or adapted," various factors must be utilized on a case- by-case basis to determine whether a given article is "specially designed or adapted" within the meaning of this statute.

In Treasury Decision 92-77 (Customs Bulletin, Vol. 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 for 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.

You contend that the following features of the patient gowns under consideration are indicative of such design features.

1) The garment utilizes two rear tie closures instead of snaps or buttons that may be difficult or impossible for patients to use.

2) The loose fit of the garment makes it possible for the garment to be changed without disturbing the patient or requiring him or her to stand.

3) The length of the gown is designed to ease the use of bedpans and other hospital equipment.

While these design features are of great utility to handicapped individuals, the garment is not dedicated solely for use by the handicapped. Thus, the "specific design" factors must be considered in conjunction with other relevant factors which are discussed below.

The utility of the article to a non-handicapped person, i.e, the "probability of general public use" is another relevant factor set forth by T.D. 92-77. In this regard, you reference Headquarters Ruling Letter (HRL) 556449, dated May 5, 1992, stating "[t]he determination was that the likelihood of the general public utilizing bedside toilet or dressing articles is remote" and that like those articles, "the patient gowns also have little chance of being used by the general public."

In HRL 556449, supra, Customs articulated the principle of "probability of general public use" in determining whether an article is "specially designed or adapted" within the meaning of the Nairobi Protocol. The following factors were considered to be relevant in making this determination: 1) whether any characteristics are present that create a substantial probability of use by the chronically handicapped; 2) whether the article is easily distinguishable from articles useful to the general public; 3) whether use of the article by the general public is so improbable that such use would be fugitive; 4) whether use of the articles by the general public would be inconvenient; 5) whether articles are imported by manufacturers or distributors recognized or proven to be involved in this class or kind of articles for the handicapped; 6) whether the articles are sold in speciality stores which serve handicapped individuals; and 7) whether the condition of the articles at the time of importation indicate that these articles are for the handicapped.

In that case, Customs considered a variety of articles, including "bedside toilet or dressing articles" to which your letter refers. We note that the articles at issue in HRL 556449 were not articles of clothing, as in the instant case, but, instead, included toilet support arms, a "Kommod" bedside toilet, toilet seat raisers and a "Strumpalatt" or stocking aid used to used to guide the foot into the stocking. It was with regard to these articles, not articles of clothing, that Customs stated "the likelihood of the general public utilizing the bedside toilet, or the dressing aids at issue is remote" and held that "there is a strong indication that these articles are specially designed or adapted for the handicapped."

In analyzing the probability of general public use to the articles under consideration, we note that the patient gowns are not designed for street wear, but for use in a medical environment (e.g, hospitals, nursing homes, doctors'offices, birthing centers, etc.) Within this particular environment, there exists not only a substantial probability of use by the chronically handicapped, but also an equally probability that the articles will also be used by individuals hospitalized, or otherwise being treated, for acute or transient disability. Moreover, the articles are also suitable for use in medical offices for those non-handicapped individuals undergoing diagnostic examination (e.g., x-rays, etc.). Because the subject garments are equally suitable for use by a large population of
patients, including those who suffer from acute or transient disability and the non-handicapped, the use of the garments in this manner is not so improbable as to constitute a fugitive use; therefore, we are unable to conclude that the garments will be used predominantly by individuals suffering from a permanent or chronic physical or mental impairment, as required by U.S. Note 4(a), subchapter XVII, Chapter 98, HTSUS.

With regard to the other factors set forth in T.D. 92-77, supra, and HRL 556449, no information has been submitted which would indicate that the importer of the hospital patient gowns, Eastern Imports, Ltd., is recognized as a party involved in the importation of articles for the benefit of the handicapped. Although you have attached New York ruling NY 803686, which addressed the eligibility of adult bibs for entry under subheading 6217.10.0010, HTSUS, and have indicated that the requesting party in both cases is the same, we note that the fact that a firm has filed two requests for a binding ruling under subheading 9817.00.96, HTSUS, does not indicate that it is "recognized" as a party involved in the importation of articles for the benefit of the handicapped. Additionally, the patient gowns are not sold in speciality stores which serve handicapped individuals, but are sold to other firms who distribute them to hospitals and nursing homes, along with sheets, towels, barmops and bibs. Lastly, there is nothing to suggest that the condition of the articles at the time of importation would indicate that the articles are specially designed or adapted for use by the handicapped, i.e., those suffering chronic and permanent disability, rather than those individuals hospitalized or otherwise being treated for acute or transient disability or undergoing diagnostic examination. Accordingly, it is our decision that the subject hospital patient gowns are not "articles specially designed or adapted for the handicapped," and, therefore, are not eligible for duty-free treatment under subheading 9817.00.96, HTSUS. New York Ruling PD A82009, Supplement 1, dated May 9, 1996, is hereby affirmed.

HOLDING:

On the basis of the information and sample submitted, the cotton patient hospital gowns which equally suitable for use by a large population of patients, including those who suffer chronic and permanent disability, those who suffer from acute or transient disability and non-handicapped individuals undergoing diagnostic examination, are not 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, are not eligible for duty-free treatment under subheading 9817.00.96, HTSUS.
A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is 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

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See also:

• Tariff No.: 6211.42.00 - Women's or girls' track suits or other garments nesoi, not knitted or crocheted, of cotton
• Tariff No.: 9817.00.92 - Books, music and pamphlets, in raised print, used exclusively by or for the blind
• Tariff No.: 9817.00.94 - Braille tablets, cubarithms, and special apparatus, machines, presses, and types for use by or benefit exclusively of the blind
• Tariff No.: 9817.00.96 - Other articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons