9817.00.96; acute and transient disability; Breeze; UltraSlide

HQ H074876 November 19, 2009 CLA-2 OT:RR:CTF:VS H074876 KSG CATEGORY: Classification TARIFF NO.: 9817.00.96 Deborah B. Stern, Esq. Sandler, Travis & Rosenberg, P.A. 5200 Blue Lagoon Drive Miami, Florida 33126-2022 RE: 9817.00.96; acute and transient disability; Breeze; UltraSlide Dear Ms. Stern: This is in reference to the ruling request you submitted on behalf of Med-I-Pant, Inc., dated July 13, 2009, requesting duty-free treatment for certain products known as the Breeze and the UltraSlide under subheading 9817.00.96, of the Harmonized Tariff Schedule of the United States (“HTSUS”). A telephonic conference was held on this matter. Two additional submissions dated September 8, 2009, and November 5, 2009, were considered as part of the record in this case. FACTS: This case involve two products, the Breeze and the UltraSlide. The products are described as “patient positioner’s.” The Breeze is a rectangular sheet for a patient bed, made of 50% cotton, 50% polyester white twill with a center blue square-shaped backing made of 100% polyester taffeta. It is placed under bedridden patients, on top of a standard bed sheet or on top of the UltraSlide sheet, perpendicular to the bed and has side flaps that ensure that it will stay securely in place. The UltraSlide is a fitted bottom sheet made of knit fabric modified with a low-friction center panel of blue polyester taffeta with carbon fibers running down the middle. The standard size is 32-36” wide, 78-84” long and 4-8” deep. When the two products are used together, the taffeta portions of each provide a dual slick surface to facilitate the movement of particularly fragile patients as it reduces jostling. The products are used together for patients stated to have little or no mobility that require extensive or total assistance for repositioning in bed. The literature for these products states that they provide for smooth repositioning of a bedridden patient, reducing the possibility of bedsores and pressure ulcers caused by impaired mobility. Counsel states that the cost of these fabric is eight times the cost of standard linens. The products are marketed to nursing homes/ long term care facilities and hospitals. The products are advertised in nursing journals, and trade shows and are not available at retail. Counsel also submitted an affidavit of Carol Stamas, the Director of Clinical Resources, of Encompass Group LLC, a company that develops, manufactures and markets woven and non-woven products for the healthcare industry. Ms. Stamas is also a Registered Nurse. Several of the facilities she works with use the Breeze/ UltraSlide patient repositioning system. She states that the Breeze/UltraSlide system would not generally be used for acute care patients but rather would be used for patients whose mobility is chronically or permanently impaired. ISSUE: Whether the products described above, the Breeze and the UltraSlide, are eligible for duty-free treatment under subheading 9817.00.96, HTSUS. LAW AND ANALYSIS: 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), 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 little or no mobility and unable to walk is physically handicapped as that term is defined in U.S. Note 4(a) to Subchapter XVII. Therefore, persons who suffer from little or no mobility and are unable to walk are considered handicapped within the meaning of U.S. Note 4(a). The issue is whether the products described above are articles for “acute or transient” (temporary) disability which would not be eligible for subheading 9817.00.96 treatment pursuant to U.S. Note 4(b)(i). The products described must be “specially designed or adapted” for the use or benefit of handicapped persons. 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. In this case, there is no question that the products are not products that would be used by the general public or someone that has no disability. The only question is whether the products are specially designed or adapted for the use of handicapped persons, i.e. persons who have a chronic disability and not an acute disability. 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 not 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 costly, which would deter hospitals from general use in the hospital. They are also durable and reuseable and designed for long-term use over a long period of time. Further, they are sold principally to intermediate and long-term care facilities. The products are designed for the needs of chronically impaired patients. The products are marketed specifically to nursing homes, long-term health care facilities and hospitals through advertising in professional journals and trade shows. Counsel has 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 these articles are specially designed or adapted for the use or benefit of persons with chronic disabilities. Therefore, we find that the Breeze and the UltraSlide patient positioner system satisfies the requirements for duty-free treatment under subheading 9817.00.96, HTSUS. HOLDING: The Breeze and the UltraSlide patient positioner system satisfy the requirements 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, Monika R. Brenner Chief, Valuation & Special Programs Branch