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HQ 563008

May 20, 2004

CLA-2 RR:CR:SM 563008 KSG


TARIFF NO.: 9817.00.96

Port Director
U.S. Customs and Border Protection
200 East Bay Street
Charleston, South Carolina 29401

RE: Application for Further Review of Protest No. 1601-03-100411; disposable pads and adult briefs; subheading 9817.00.96; acute and transient disability

Dear Director:

This is in reference to a Protest and Application for Further Review filed by Kendall Healthcare Products Co. contesting the denial of duty-free treatment under subheading 9817.00.96, of the Harmonized Tariff Schedule of the United States (“HTSUS”). Counsel was given an opportunity to schedule a conference at Headquarters.


Tyco Healthcare-Kendall imports a wide range of incontinent products. This case involves four entries of WINGS Choice Adult Briefs (‘Briefs”) and WINGS Pads made on July 8, 17, and 25, 2002 and August 1, 2002.

The Briefs are made of moisture-proof backing with extra soft, breathable stay-dry facing. They have elastic leg gathers and refastenable tape tabs to ensure a secure fit. The briefs contain a poly-fresh super absorbent polymer for extra dryness and odor control as well as a built-in wetness sensor to indicate the need to change.


They also contain a blue dryness strip and diamond and linear embossing for maximum pad stability and utilization.

The WINGS Pad and Pant are a two-part absorbency system, which is available in three levels of protection: day regular, day plus and night super. The Pants consist of a contoured shape, padded wing areas and elastic leg gathers to provide effective and convenient protection for ambulatory persons. The Pads are designed to be worn either with the WINGS Pants or similar control undergarments. They contain a poly-fresh super absorbent polymer for maximum dryness. Although the protest states that Pads and Pants are involved in this case, the invoices and entry documents only show the importation of WINGS Pads and Briefs. Therefore, we will not consider the eligibility of imported WINGS pants in this case.

The import specialist retrieved product information about these products on the internet. There is a picture of the Day Insert Pad, the Day Plus Insert Pad, the absorbant Pad Super and the Brief. The Pads are sold in either a case of 88, 80, or a bag of 24 and the Briefs are sold in a case of 96. All the products appear to be disposable.


Whether the disposable Pads, and Briefs are eligible for duty-free treatment under subheading 9817.00.96, HTSUS.


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 3
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), 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), 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 permanent or 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 permanent or chronic incontinence are considered handicapped within the meaning of U.S. Note 4(a).

The issue is whether the Pads and Briefs are articles for “acute or transient” (temporary) incontinence which would not be eligible for subheading 9817.00.96 treatment pursuant to U.S. Note 4(b)(i).

In Headquarters Ruling Letter (“HRL”) 557529, dated March 8, 1994, Customs determined that a product referred to as an “institutional adult diaper” was eligible for duty-free treatment under subheading 9817.00.96, HTSUS. The product was described as a cotton or polyester shell with a “channel system” that has a disposable insert pad inside it. This product was washable and reusable. The insert 4
pad in this case was not imported and therefore, not at issue. CBP cited to a number of rulings and then stated that “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.” Also see HRL 558958, dated March 25, 1996. Similarly, in HRL 960056, dated January 30, 1997, CBP ruled that a reusable durable adult diaper made of cotton was eligible for subheading 9817.00.96, HTSUS, treatment.

In HRL 085094, dated May 10, 1990, Customs held that reuseable polyester/vinyl/rayon underpads sold principally to intermediate care facilities, nursing homes and chronic care facilities were eligible for duty-free treatment under subheading 9817.00.96, HTSUS. Customs stated that ..."an individual with acute or transitory incontinence would be likely to purchase reusable products, such as those at issue, based on cost alone. Such an individual could easily meet their need for much less with disposable products.”

The products involved in this case are disposable incontinent care products that are not durable or reuseable or designed for long-term use over a long period of time. The protestant has not submitted sufficient facts in this case to support a finding that these products are not within the exception for acute or transient disabilities. Accordingly, we find that the protestant has not shown that these articles would be more likely to be used by persons with chronic incontinence. Therefore, we find that the protestant has not shown that the Pads and Briefs satisfy the requirements of duty-free treatment under subheading 9817.00.96, HTSUS.


The protest should be denied in full. The protestant has not shown that the imported disposable Pads and Briefs would be more likely to be used by persons with chronic incontinence.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision should be accomplished prior to mailing of this decision. Sixty days

from the date of this decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.


Myles B. Harmon, Director
Commercial Rulings Division

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