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HQ 960056




January 30, 1997

CLA-2 RR:TC:TE 960056 CAB

CATEGORY: CLASSIFICATION

Jenny Gilles
Babykins Products (1992) LTD
8171 Seafair Drive
Richmond BC Canada V7C 1X3

RE: Country of origin of adult diapers; Heading 9817; Heading 6211; Eligibility under the Nairobi Protocol

Dear Ms. Gilles:

This is in response to your inquiry of September 25, 1996, requesting a country of origin determination for certain diapers pursuant to Section 102.21, Customs Regulations. Samples were submitted for examination and will be returned to you under separate cover.

FACTS:

There are various types of reusable, durable diapers at issue. All of the diapers at issue with the exception of Style 10100 contain an inner layer of cotton padding material. Style 10100 is a 100 percent woven cotton diaper that is prefolded and intended for adults. Style 10500 is a 100 percent woven cotton adult diaper with a Velcro means of closure. Style 10700 is a pull-on adult cloth diaper that is comprised of 80 percent cotton material and 20 percent polyester material. Style 10800 is an adult diaper composed of woven 70 percent polyester material and 30 percent cotton material which either contains a Velcro or snap means of closure. Style 10900 is an adult pull-on diaper comprised of woven 70 percent nylon material and 30 percent cotton material.

The cotton fabric used for Styles 10100 and 10500 is sourced in China. The cotton fabric used for Style 10700 is woven in China and the polyester fabric is woven in Canada. The polyester fabric used for Style 10800 is woven in Holland while the cotton fabric is woven in China. The nylon fabric used for Style 10900 is woven in Taiwan while the cotton fabric is woven in China. The fabric used for all of the styles at issue is cut, sewn, and fully assembled into the finished diapers in Canada.

ISSUES:

I. Whether the adult diaper is "specially designed or adapted" for the physically or mentally handicapped persons other than the blind under subheading 9817.00.96 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA)?

II. What is the country of origin of the merchandise at issue?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's taken in order.

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 Competiveness Act of 1988, provided for the implementation of the Nairobi Protocol into subheadings 9817.00.92, 9817.00.94, and 9817.00.96, HTSUSA. These tariff provisions specifically provide for articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons and are thus, eligible for duty-free treatment. Specifically, subheading 9817.00.96, HTSUSA, is the provision for articles specially designed for the use or benefit of physically or mentally handicapped persons other than the blind.

U.S. Note 4, Subchapter XVII, Chapter 98, HTSUSA, 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;

(iii) therapeutic and diagnostic articles; or

(iv) medicine or drugs.

Thus, according to Note 4, articles classifiable in subheading 9817.00.96, HTSUSA, must meet the following requirements: (1) they must be designed for the benefit of persons suffering from a physical or mental impairment; (2) this impairment must substantially limit one or more major life activities; and, (3) this impairment must be permanent or chronic. Customs has determined in previous rulings 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 (HQ) 085691, dated April 18, 1990 and HQ 557529, dated March 8, 1994. The subject diapers are reusable, multi-layered, and durable. The subject merchandise belongs to a class of goods used for chronically or permanently incontinent people, and is therefore, classifiable in subheading 9817.00.96, HTSUSA, for tariff classification duty purposes.

In order to make a country of origin determination for marking purposes, the subject merchandise is subject to Section 334 of the Uruguay Round Agreements Act (codified at 19 USC Section 3592), new rules of origin which were effective for textile products entered, or withdrawn from warehouse, for consumption on or after July 1, 1996. These rules were published in the Federal Register, 60 Fed. Reg. 46188 (September 5, 1995). Section 102.21, Customs Regulations, (19 CFR Section 102.21), sets forth the general rules to determine country of origin. Thus, the country of origin of a textile product is determined by a hierarchy of rules set forth in paragraphs (c)(1) through (c)(5) of Section 102.21.

Section 102.21(c)(1) sets forth the general rule for determining the country of origin of a textile or apparel product when the good is wholly obtained or produced in a single country, territory, or insular possession. As the subject merchandise has not been wholly obtained or produced in a single country, territory, or insular possession, this section is inapplicable.

Section 102.21(c)(2) provides for instances where the country of origin of a textile or apparel product cannot be determined under Section 102.21(c)(1).

Section 102.21(c)(2) provides, in pertinent part:

Where 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:"

6210-6212 (1) If the good consists of two or more components, a change to an assembled good of heading 6210 through 6212 from unassembled components, provided that the change is the result of the good being wholly assembled in a single country, territory, or insular possession.

Heading 6211, HTSUSA, the provision for other garments is the heading which the subject goods would normally be classified. Accordingly, for country of origin marking purposes, we use the rule applicable to Heading 6211, HTSUSA.

The subject diapers are cut and fully assembled in Canada from fabric manufactured in China, Holland, Taiwan, or Canada. In your submission you do not state where the inner padding fabric is sourced, however, since the country of origin determination for the subject diapers is based on Section 102.21(c)(2) and the applicable provision of Section 102.21(e), this information is not necessary to make a country of origin determination. In accordance with Section 102.21(c)(2), the country of origin of the subject diapers, is Canada, the country where they are wholly assembled.

HOLDING:

The country of origin of the subject diapers is Canada.

For tariff classification purposes, Styles 10100, 10500, 10700, 10800, and 10900, are classifiable in subheading 9817.00.96, which is the provision for articles specially designed or adapted for the use or benefit of physically or mentally handicapped persons other than the blind. Articles classified under this subheading are free of duty.

For country of origin marking purposes, Styles 10100, 10500, and 10700 are classifiable in subheading 6211.42.0081, HTSUSA, which is the provision for other garments, women's or girls', of cotton, other. For country of origin marking purposes, Styles 10800 and 10900 are classifiable in subheading 6211.43.0091, which is the provision for other garments, women's or girls', of man-made fibers, other.

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). This section 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.

Sincerely,
John Durant, Director
Tariff Classification Appeals Division

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