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HQ 085576


April 18, 1990

CLA-2 CO:R:C:G 085576 CC 085017

CATEGORY: CLASSIFICATION

TARIFF NO.: 9817.00.9600

Mr. William J. Maloney
Rode & Qualey
295 Madison Avenue
New York, N.Y. 10017

RE: Revocation of Headquarters Ruling Letter (HRL) 085017; Adult bib for handicapped

Dear Mr. Maloney:

This letter is in response to your request for reconsideration of HRL 085017, dated July 31, 1989, on behalf of Med-I-Pant, Inc., concerning the classification of an adult bib. A sample was submitted for examination.

FACTS:

The adult bib, designated as Style 108, has snaps at the neck and, measuring 17 inches in width by 36 inches in length, is large enough to cover an adult torso. The front panel of the bib consists of plaid 100 percent cotton woven fabric. The rear panel consists of a knit polyester base fabric, which is completely and visibly covered by green vinyl. The impermeable rear panel protects the wearer from spills that could stain clothing or from hot spills that could injure. The soft polyester based material of the rear panel permits the garment to be worn directly against the wearer's skin.

In HRL 085017 Customs ruled that the evidence did not support a finding that this article was classifiable under subheading 9817.00.96 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), for articles specially designed or adapted for the use or benefit of physically or mentally handicapped persons. Instead, it was classified under subheading 6217.10.0010, HTSUSA, which provides for other made up clothing accessories.

ISSUE:

Whether the submitted sample is classifiable as an article specially designed or adapted for the use or benefit of physically or mentally handicapped persons under subheading 9817.00.96, HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

Subheading 9817.00.9600, HTSUSA, provides for articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons, other. U.S. Note 4 to Subchapter XVII provides the following:

(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 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.

Thus, according to U.S. Note 4, articles classifiable in the above subheading 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 of life's major activities, and (3) this impairment must be permanent or chronic.

You state that the subject bib was specifically designed for and is used by persons who are residents of chronic care facilities and who suffer from any number of physical or mental impairments that substantially or completely limit their ability to feed and care for themselves.

A chronic physical or mental impairment which results in the inability of a person to feed oneself without the frequent spillage of food and drink, thereby necessitating the use of a protective bib, does in fact limit one of life's major activities, i.e., that of eating.

The question that remains is whether this article is used principally by those who have a permanent or chronic impairment, or, instead, by those who have an acute or transitory impairment. You state that due to its design features, durability, cost, and use in chronic care facilities, the subject bib is specifically designed for and will be used by persons suffering from chronic or permanent physical impairments, such as Alzheimer's disease, Parkinson's disease, and arthritis; it is not likely to be purchased for or used by persons suffering from a temporary or transient condition.

According to your submissions, the subject bib is designed primarily for those persons who can still attempt to feed themselves, but are prone to frequent spills because of their chronic or permanent physical impairment. The bib affords such persons with protection from spills, particularly hot liquids. In addition, the front plaid panel, which serves to disguise spills and is more attractive than the frequently used sheets, towels, and blue paper products, helps to preserve the wearer's dignity.

The cost of using the bibs is relatively expensive compared to the cost of alternative products. First, there is the cost of purchasing several bibs. Second, there is the cost of laundering the subject bibs, which must be done after each use since the spills cannot be wiped from the cotton plaid fabric. Because the bibs are made to last for at least 1 years of continuous use, their purchase and use only become cost effective if they are to be used longer than on a temporary basis. It would be less expensive for someone with a temporary impairment to use towels, sheets, or other articles that are already owned.

The market for the subject bib is chronic care facilities. Acute care facilities do not purchase bibs like the subject bibs for transient patients. One reason that hospitals and acute care facilities do not purchase the subject bibs or similar articles is that an acute care facility does not know how many bibs will be required on a given day. Therefore, the subject bibs are not cost effective at a hospital or acute care facility. Instead, it is less expensive at such facilities to purchase items such as disposable products.

Based on your submissions, we agree that due to its design features, durability, cost, and use in chronic care facilities, the submitted merchandise is designed for those who have permanent or chronic impairments. The requirements for classification as an article designed for the use or benefit of handicapped persons have been met according to U.S. Note 4; therefore, the submitted merchandise is classifiable under subheading 9817.00.9600, HTSUSA.

HOLDING:

The submitted merchandise is classified under subheading 9817.00.9600, HTSUSA, which provides for articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons, other. Articles classifiable under this subheading are free of duty.

Pursuant to Section 177.9 of the Customs Regulations (19 CFR 177.9), HRL 085017, dated July 31, 1989, is modified accordingly.

Sincerely,

John Durant, Director

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