OT:RR:CTF:VS H134535 YAG
Mr. Jeffrey D. Miller, President
Mission: Allergy, Inc.
28 Hawleyville Road
Hawleyville, CT 06440
RE: Request for Reconsideration of New York (“NY”) Ruling Letter N121698 concerning the tariff classification of mattress covers and pillow protectors
Dear Mr. Miller:
This letter is in response to your request for reconsideration, dated November 10, 2010, requesting that U.S. Customs and Border Protection (“CBP”) reconsider NY N121698, issued to you on September 28, 2010. In particular you request that we reconsider the classification of two mattress covers and two pillow protectors, which CBP classified in subheading 6302.32.20 of the Harmonized Tariff Schedule of the United States (“HTSUS”), which provides for “[b]ed linen, table linen, toilet linen and kitchen linen: other bed linen: [o]f man-made fibers: other… other: other.” We have reviewed NY N121698 and find that the ruling is correct for the reasons set forth below.
The merchandise at issue was described in NY N121698, dated September 28, 2010, as follows:
The submitted samples are two mattress covers and two pillow protectors (Mission: Allergy Premium Microfiber and Mission: Allergy Barrier Fabric II). All of the items are made from 100 percent polyester woven fabric. The fabric is not printed or napped. The mattress covers are sewn along the sides with a zipper closure at one end. Both mattress covers feature a 9-inch side gusset. The covers are designed to completely encase a mattress.
The pillow protectors are sewn along three sides with an overlapping zipper closure on the fourth. The mattress covers and pillow protectors do not contain any embroidery, lace, braid, edging, trimming, piping or appliqué work. The covers and protectors will be available in standard pillow and mattress sizes. The mattress covers are also sized for 9, 12, 15, and 18 inch thick mattresses.
NY N121698 held that the items at issue did not qualify as articles for the handicapped classified under subheading 9817.00.96, HTSUS. Instead, the merchandise was classified under subheading 6302.32.20, HTSUS. The duty rate under subheading 6302.32.20, HTSUS, is 11.4 percent ad valorem.
In your request for reconsideration, dated November 10, 2010, you argue that the statements in NY N121698 do not address any of the specific points made in your classification request. Specifically, you claim that NY N121698 mis-categorized the products as “pillow and mattress protectors,” since these products are solely designed to protect patients with respiratory allergies, including allergic asthma, not to protect the pillow or mattress.
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 United States. 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.
In order for subheading 9817.00.96, HTSUS, to apply, 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 Headquarters Ruling Letter (“HRL”) 556449, dated May 5, 1992, CBP 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 HRL 966791, dated January 16, 2004, CBP found that zippered vinyl mattress covers were not eligible for a secondary classification under subheading 9817.00.96, HTSUS. The requestors argued that their mattress covers were designed to benefit the incontinent by protecting the mattress from any wetness. However, the internet search revealed multiple websites that showed that the mattress covers in question were also marketed to people with allergies and people who wish to keep their mattress cleaned. See HRL 966791. In other words, in HRL 966791, vinyl mattress covers had the claimed benefit for persons suffering from incontinence and from allergies and were still found not to be eligible for the subheading 9817.00.96, HTSUS classification. The only difference between the vinyl encasings and the Mission: Allergy products is that the Mission: Allergy products are less noisy and can absorb a greater degree of moisture, but these attributes make them no more likely than the vinyl covers to be eligible for subheading 9817.00.96, HTSUS, treatment.
Also, in this case, it is likely that the Mission: Allergy products are the products that would be used by the general public for added protection or someone that has no disability. The products are mattress and pillow covers, which might be superior to other encasings in the quality of the barrier fabric and construction, but they are not easily distinguishable, by properties of the design, form, and the corresponding use, from articles useful to non-handicapped persons. The articles, no matter what properties they possess, are the mattress and pillow covers for all intents and purposes. Even though the articles are marketed to the consumers suffering from allergies, these articles are available for purchase to the general public, for example, via Mission: Allergy website, and not sold in specialty stores, which specifically serve handicapped individuals. Furthermore, many companies, stores and websites promote products for allergic patients, and the fact that Mission: Allergy sells items that have been shown in scientific studies to be effective does not mean that the company is a distributor recognized to sell the articles for the handicapped or that the condition of the articles upon the importation indicates that these mattress and pillow covers are intended for the handicapped. Also, although there is a substantial probability that these articles are used by the people suffering from allergies, it is questionable that such persons are chronically handicapped.
Even though allergies can aggravate some respiratory illnesses, we do not find that allergies rise to the level of 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, as specified under the U.S. Note 4(a), Subchapter XVII, Chapter 98, HTSUS. The common allergy symptoms such as sneezing, watery eyes, coughing, etc. do not limit breathing or another major life activity. Therefore, the persons who are allergic to the house dust mites do not meet the definition of the “blind or other physically or mentally handicapped persons” under the U.S. Note 4(a), Subchapter XVII, Chapter 98, HTSUS.
Accordingly, we find that the mattress and pillow covers are not specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons. Therefore, we find that the imported merchandise does not satisfy the requirements for duty-free treatment under subheading 9817.00.96, HTSUS, and that NY N121698, dated September 28, 2010 is affirmed. If you have any questions, please contact Yuliya Gulis at (202) 325-0042.
Sincerely,
Monika R. Brenner, Chief
Valuation and Special Programs Branch
cc: Mark G. Nackman, Chief, Miscellaneous Products Branch
National Commodity Specialist Division