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HQ 085007


October 5, 1989

CLA-2 CO:R:C:G 085007 jlj 842547

CATEGORY: CLASSIFICATION

TARIFF NO.: 6117.80.0010; 6211.42.0080

Ms. Ann Williams
A. N. Deringer Inc.
30 West Service Road
Champlain, New York 12919 - 9703

RE: Adult bib and adult diaper

Dear Ms. Williams:

You requested tariff classifications under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) for an adult bib and an adult diaper manufactured in Canada by your client, Textiles Absorb-Plus, Inc., of Quebec, Canada. You submitted descriptive literature and samples of both items. You suggest classification as articles specially designed or adapted for the use or benefit of physically or mentally handicapped persons other than the blind, in subheading 9817.00.96, HTSUSA.

FACTS:

The adult bib, style 7006, is made of a front layer of 100 percent cotton terry cloth, a middle layer of vinyl, and a back layer of 100 percent woven polyester.

ISSUE:

Are the adult diaper and adult bib eligible for classification as articles specially designed or adapted for the use or benefit of physically or mentally handicapped persons other than the blind in subheading 9817.00.96, HTSUSA?

LAW AND ANALYSIS:

Presidential Proclamation 5978 of May 12, l989, provided for certain duty-free provisions in the HTSUSA which gave effect to the Nairobi Protocol (S. Treaty Doc. 97-2). Subheading 9817.00.96, HTSUSA, was one of these provisions. It provides for other articles specially designed or adapted for the use or benefit of physically or mentally handicapped persons other than the blind.

You argue that the instant merhandise is specially designed for use by handicapped people who are unable to care for themselves. You do not identify any special design features.

Your client's president argues that incontinence is a problem for a great majority of mentally handicapped, physically handicapped and old age patients. He adds that incontinent patients will also require bibs to protect themselves when drinking liquids or eating, because they have poor stability. He concludes that the products are used only by mentally or physically handicapped people or by old people.

Incontinent people are unable to control their bodily functions. While the adult diapers would help incontinent people, we see no absolute correlation between being mentally or physically handicapped and being incontinent. It is quite possible to be incontinent and to be healthy in every other way. Incontinence in and of itelf is not a physical handicap; therefore, classification in subheading 9817.00.96, HTSUSA, must be denied for the adult diaper inasmuch as it is neither specially designed nor adapted for handicapped people.

We find the same difficulty with the adult bib. While some mentally and physically handicapped people may need such bibs because they are unable to feed themselves, other people who are only incapacitated temporarily (such as patients with broken arms) may also need such bibs. We find no evidence that the adult bib is specially designed or adapted for the use or benefit of physically or mentally handicapped persons; therefore, classification in subheading 9817.00.96, HTSUSA, must be denied for the adult bib.

The adult bib is classifiable under the provision for other made up clothing acccesories, knitted or crocheted: other accessories: of cotton, in subheading 6117.80.0010, HTSUSA, dutiable at the rate of 15.5 percent ad valorem. Articles classified in this subheading are subject to textile category 359. Articles originating in Canada and classified in this subheading are eligible for a duty rate of 13.9 percent ad valorem under the United States-Canada Free Trade Agreement (CFTA) if all applicable regulations are met.

The adult diaper is classifiable under the provision for other garments: other garments, women's or girls': of cotton: other, in subheading 6211.42.0080, HTSUSA, dutiable at the rate of 8.6 percent ad valorem. Articles classified in this subheading are subject to textile category 359. Articles originating in Canada and classified in this subheading are eligible for a duty rate of 7.7 percent ad valorem under the CFTA if all applicable regulations are met.

HOLDING:

Neither the adult diaper nor the adult bib is eligible for classification in subheading 9817.00.96, HTSUSA. The adult bib is classified in subheading 6117.80.0010, HTSUSA. The adult diaper is classified in subheading 6211.42.0080, HTSUSA.

Sincerely,

John Durant, Director

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