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HQ W562506




October 28, 2002

CLA-2 RR:CR:SM 562506 KSG

CATEGORY: CLASSIFICATION

TARIFF NO.: 9817.00.96

Cindy R. Taber, Esq.
Sandler, Travis & Rosenberg, P.A.
551 Fifth Avenue
New York, NY 10176

RE: Eligibility of mattress underpads for duty-free treatment under subheading 9817.00.96; Nairobi Protocol; articles specifically designed or adapted for the use or benefit of the blind or other physically or mentally handicapped;

Dear Ms. Taber:

This is in reference to your letter dated August 13, 2002, requesting a binding ruling on the eligibility for duty-free treatment under subheading 9817.00.96, of the Harmonized Tariff Schedule of the United States (“HTSUS”), of imported mattress underpads. You submitted a sample for our examination.

FACTS:

The imported article is a 39" x 54" waterproof mattress underpad made of 100% woven polyester top with a flexible vinyl backing. All fabric is formed in the U.S. This product can be washed in a washing machine and is designed for long term use.

ISSUE:

Whether the mattress underpads are eligible for duty-free treatment under subheading 9817.00.96, HTSUS.

LAW AND ANALYSIS:

The underpad is classified in subheading 6304.93.00, HTSUS. See NY F82329, dated February 22, 2000.

The Agreement on the Importation of Educational, Scientific and Cultural Materials, known as the Florence Agreement, is an international agreement drafted by the United Nations Educational, Scientific, and Cultural Organization (UNESCO) and adopted by it in Florence, Italy, in July 1950 (17 UST 1835; TIAS 6129). It provides for duty-free treatment and the reduction of trade obstacles for imports of educational, scientific, and cultural materials in the interest of facilitating the international free flow of ideas and information. Materials falling within the coverage of the Florence Agreement include: books, publications and documents; works of art and collector’s pieces; visual and auditory materials; scientific instruments and apparatus; and articles for the blind.

The Nairobi Protocol to the Florence Agreement on the Importation of Educational, Scientific, and Cultural Materials Act of 1982 expanded the scope of the Florence Agreement primarily by expanding duty-free treatment for certain articles for the use or benefit of the handicapped in addition to providing duty-free treatment for articles for the blind. The 97th Congress passed Pub. L. 97-446 to ratify the Nairobi Protocol in the U.S. The Senate stated in its Report that one of the goals of this law was to benefit the handicapped and show U.S. support for the rights of the handicapped. The Senate, however, did state that it did not intend “that an insignificant adaptation would result in duty-free treatment for an entire relatively expensive article... the modification or adaptation must be significant so as to clearly render the article for use by handicapped persons.” S. Rep. No. 97-564, 97th Cong. 2nd Sess. (1982). The Senate was concerned that persons would misuse this tariff provision to avoid paying duties on expensive products.

Section 1121 of the Omnibus Trade and Competitiveness Act of 1988 and Presidential Proclamation 5978 provided for the implementation of the Nairobi Protocol by inserting permanent provisions, subheadings 9817.00.92, 9817.00.94, and 9817.00.96 into the HTSUS. These tariff provisions specifically state that “articles specifically 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), 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), chapter 98, HTSUS, states that 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.

Customs has previously held 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, persons who suffer from incontinence are considered handicapped within the meaning of U.S. Note 4(a).

The issue is whether the underpads are “specially designed or adapted” for the use or benefit of handicapped persons, which is required by the superior text in subheading 9817.00.96, HTSUS.

The meaning of the phrase “specially designed or adapted” has been decided on a case-by-case basis. In HRL 556449, dated May 5, 1992, Customs set forth factors it would consider in making this case-by-case determination. These factors include: 1) the physical properties of the article itself, i.e., whether the article is easily distinguishable, by properties of the design, form, and the corresponding use specific to this unique design, from articles useful to non-handicapped persons; 2) whether any characteristics are present that create a substantial probability of use by the chronically handicapped so that the article is easily distinguishable from articles useful to the general public and any use thereof by the general public is so improbable that it would be fugitive; 3) whether articles are imported by manufacturers or distributors recognized or proven to be involved in this class or kind of articles for the handicapped; 4) whether the articles are sold in specialty stores which serve handicapped individuals; and 5) whether the condition of the articles at the time of importation indicates that these articles are for the handicapped.

Customs held in HRL 557529, dated March 8, 1994, that adult diapers were eligible for classification in subheading 9817.00.96, HTSUS. Customs stated that the diaper was durable, well constructed and designed for repeated use over a long period of time. Customs noted that although the diaper might be used for mild incontinence problems or postpartum or postoperative therapy, it was not disqualified from classification in subheading 9817.00.96, HTSUS. Also see HRL 560278, dated October 7, 1997, HRL 085094, dated May 10, 1990, and HRL

956632, dated April 26, 1993. This case is similar to HRL 557529 in that the product is durable and designed for repeated use (it is washable). We believe that any use by the general public is so improbable that it would be fugitive. Accordingly, we find that the underpads are specially designed or adapted for the use or benefit of handicapped persons. Based on the above, the imported underpads are entitled to duty free treatment under subheading 9817.00.96, HTSUS.

HOLDING:

The imported mattress underpads are specially designed or adapted for the use or benefit of handicapped persons. The mattress underpads are 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,

Myles B. Harmon, Acting Director
Commercial Rulings Division


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