CLA-2 RR:TC:TE 960056 CAB
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
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
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.
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
(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
(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 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.
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.
John Durant, Director
Tariff Classification Appeals Division